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IN THE COURT OF THE METROPOLITAN SESSIONS JUDGE :: HYDERABAD
Dated this the 18th day of June, 2021
Present : Sri N. Tukaramji, Metropolitan Sessions Judge, Hyderabad.
SESSIONS CASE NO.13/2019
Crime Number & Police StationCrimeNo.107/2018ofPS. Banjarahills, Hyderabad.
Name and description of the(A1).Anold Martian Donlock @ AccusedNaveenlues, S/o.Anold @ Jaremiah, Age : 28 years, Occ : Student, R/o.H.No.9-4-136/114, 3rd Floor, Jamali Kunta, Quli Qutubshahi Colony, Golconda, Hyderabad. N/o.Free Town, Sierra Leone, West Africa.
(A2). Okorie John Chukwu, S/o.Okorie, Age: 26 years, Occ : Student in Nizam College, Basheerbagh, Hyderabad, R/o.Flat No.501, H.No.8-2-603/17, RoadNo.1,ZaheeraNagar, Banjarahills, Hyderabad. N/o.Abuja, Nigeria.
(A3). Orji Philip Kelechukwu, S/o.Orji Jeremiah, Age : 27 yrs, Oc : Student, R/o.Flat No.501, H.No.8-2-603/17, RoadNo.1,ZaheeraNagar, Banjarahills, Hyderabad, N/o.Nigerian.
(The case against A2 and A3 separated and numbered as
SC.47/2019)
Name and description of theThe State of Telangana, Through the ComplainantInspector of Police, PS Banjara Hills, Hyderabad
Prosecution conducted byPublic Prosecutor of this Court.
Accused defended bySri Mohd Afzaluddin Dakhani, Advocate for the accused.
Offence ChargedUnder Section 8(c) Read with 21 (b) of NDPS Act, 1985 and Section 14 (A) of Foreigners Act, 1946
Plea of the accusedNot guilty.
Finding of the court Accused is found guilty for the offence under section 8(c) read with 21(B) of the NDPS Act and 14(A) of the Foreigners Act and he is convicted under section 235(2) CrPC.
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Result In the result, the accused is found guilty for the offence under section 8(c) read with 21(B) of the NDPS Act and 14(A) of the Foreigners Act and he is convicted under section 235(2) CrPC. The convict is questioned with regard to the quantum of sentence, for which he pleaded that he has not committed any offence. He is innocent and pleaded for mercy. Having regard to the above submissions, the nature of offence committed by the convict and quantity of contraband involved in this case, this court is of the opinion that it is not a fit case to apply the provisions of Probation of Offenders Act. As per the record, the convict is in custody since 10.2.2018 to to 16.4.2018 and from 26.3.2019 to till date, in total, he is in custody for 2 ½ years. Under these circumstances, this court is of opinion that the ends of justice will be met, if the convict is sentenced to the period already undergone and also to pay a fine of Rs.10,000/- (Rupees ten thousand only) and in default of payment of fine simple imprisonment for three months for the offence under section 8(c) read with 21(B) of the NDPS Act. Further, the convict is also sentenced to the imprisonment for the period already undergone and also to pay a fine of Rs.10,000/- (Rupees ten thousand only) and in default of payment of fine simple imprisonment for three months for the offence under the section 14(A) of the Foreigners Act. The SHO, Banjara Hills through Commissioner of Police, Hyderabad City, shall take up all necessary steps for the deportation of the convict, after serving the sentence. The MO1/4 cellphones and MO3/Yamaha motorcycle shall be confiscated to State, the MO2/6 packets of Cocaine, MO4/Heroin and MO5/samples shall be produced
before the Drug Disposal Committee
for destruction, after appeal time is over and subject to result of the appeal if any filed. The convict was appraised about the right of appeal before the Hon’ble High Court.
:: J U D G M E N T ::
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1.The Inspector of Police, Banjara Hills Police Station, filed charge sheet in Cr.No.107 of 2018 against Anold Martians Donlock, Okorie John
Chukwu and Orji Philip Kelechukwu/1st to 3rd accused, alleging commission of offence punishable under section 8(c) read with 21(b) of Narcotic Drugs and
Psychotropic Substances Act (for short ‘NDPS Act’) and section 14(A) of the
Foreigners Act,1946.
2.1The case of the prosecution in brief is that on 9.2.2018 at 1320 hours, K.Ravi Kumar/Detective Inspector of Police/Complainant/ Investigating officer/PW5 of the Banjara Hills Police Station, on receipt of information that the accused herein and two others are in illegal possession of contraband and delivering the same near Basavatararakam Cancer Hospital, Road No.10,
Banjara Hills, informed the same to his superior officer, rushed to the spot along with staff. There, on observing three foreign nationals/1st to 3rd accused coming on motorcycle, stopped them and checked the motorcycle. In the pouch/bag on the bike petrol tank, found a carry bag and in it small polythene packets with white colour powder. On inspecting it to be narcotic substance, served notice under section 50 of NDPS Act/Ex.P1 to the accused, for which the accused opted to be searched in the presence of a gazetted officer. As such, the PW5 secured presence of K.Srinivas/PW2 Detective Inspector, Jubilee Hills Police
Station as gazetted officer.
2.2In the presence of gazetted officer/PW2 and the panchayatdars/A.Kiran Kumar/PW1 and one K.Krishna, searched the accused and found small nine polythene packets in the bag in possession of the rider/accused and seven small packets each from the pillion riders with homogeneous white powder. The accused informed that they are Caoine and one packets of Herion. Thereafter, the PW5 recorded the confessional statement cum seizure panchanama/Ex.P2 of the accused and seized eight small polythene packets containing Cocaine, and one polythene packet of
Heroin, one Republic of Sierra Leone Passport no.63697040 and four mobile 4 of 17 SC.NDPS.No.13/2019 phones from the possession of rider/accused, drawn two samples from the
Cocaine by making as S1 and S2 and the Heroin packet as H1 for forwarding to the FSL for chemical examination.
2.3Thereafter, the PW5 brought the accused to the police station and basing on the report/Ex.P5, the PW5 registered a case in Cr.No.107/2018 issued
FIR/Ex.P8, effected the arrest of the accused and remanded to judicial custody.
Later, the samples were forwarded to the Forensic Science Laboratory for chemical analysis. After receipt of the FSL report/Ex.P7 and completion of the investigation, the PW5 filed charge sheet.
3.After hearing the counsel for defence and the learned Public
Prosecutor, the charges are framed under section 8(c) read with 21(b) of the
NDPS Act and under section 14(A) of the Foreigners Act, explained to the accused and on pleading not guilty, the trial was taken up. The case against 2nd and 3rd accused is split up as S.C.No.47/2019.
4.During the trial, the prosecution got examined 5 witnesses and marked Exs.P1 to P9 and MOs 1 to 5. In section 313 CrPC, the 1st accused pleaded innocence and reported no defence evidence.
5.Heard the learned Public Prosecutor and the defence counsel.
The defence counsel filed written argument.
6.Learned Public Prosecutor submitted that the prosecution placed the evidence on record to prove that the accused with all knowledge committed the offence under the NDPS Act and overstayed in India beyond the visa period in contravention of the provisions of the Foreigners Act. Accordingly, the accused is liable to be convicted.
7.The defence submitted that the prosecution failed to prove the charges beyond reasonable doubt hence the accused is entitled for acquittal, 5 of 17 SC.NDPS.No.13/2019
8.Now the point that arises for determination is “Whether the prosecution could able to bring home the guilt of the accused for the offence under section 8(c) read with 21(b) of NDPS Act and section 14(A) of Foreigners
Act,1946 beyond all reasonable doubt?’
POINT:-
9.To prove the charges against the 1st accused, the prosecution must establish that on 9.2.2018 at about 1.30 PM, at Road No.10, near
Basavatarakam Cancer Hospital, Banjara Hills, Hyderabad, the 1st accused herein was found in possession of contraband (Narcotic Substance/psychotropic substance) without any licence or permission and in contravention of the provisions of the NDPS Act. Further, the 1st accused visited India on Tourist Visa and illegally continued to stay beyond the period of specified in the visa/permit in contravention of the Foreigners Act,1946.
10.At the outset, the defence contended that as the complainant and the investigating officer is one and the same, the prosecution shall vitiate. On this aspect, it is pertinent to note that the Hon’ble Supreme Court in Mukesh
Singh Vs. State (Narcotic branch of Delhi), SLP(Crl) 39528/2018, dt:31.8.2020, clarified the entanglement by holding that “the decision in Mohanlal Vs. State of
Punjab (2018) 17 SCC 627 that the informant cannot be the investigator and in such a case, the accused is entitled to acquittal is not good law and the investigation shall not be vitiated on the ground of biased order and like factor.
The question of the bias or prejudice would depend upon the facts and circumstances of the each case. Therefore merely because of the informant is the investigating officer, by that the investigation would not suffer the vice of unfairness or bias and therefore on this sole ground the informant is investigator, the accused is not entitled to acquittal.” Thus, this settled law cuts the contention of the defence on this aspect.
11.The other fact that needs attention is, the complainant and the investigating officer in this case/PW5 was declared hostile by the prosecution.
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With regard to probative force of testimony of hostile witnesses, the Hon’ble
Supreme Court in Khuji Vs. State of MP (1991) 3 SCC 627, held that “ the evidence of a hostile witness in all eventualities ought not stand effaced altogether and that the same can be accepted to the extent of facts dependable, on a careful scrutiny.”
12.In the light of this legal position, by the leading questions in cross- examination of the prosecution to the PW5, it is clear that the variance is with regard to number and marking of samples drawn. Howsoever to arrive at conclusions, evidence of the PW5 shall be scrutinised, along side the other material on record especially on the facts of alleged deviations put up in the cross-examination by the prosecution.
13.With regard to receiving information and compliance of the requirement of section 42(2) of the NDPS Act, though the complainant/investigating officer/PW5 stated that the credible information was submitted to his superior officer in writing, the same is not filed before this court.
However, the PW5 asserted that the information was submitted to the superior officer, ACP, Banjara Hills and after obtaining permission, they proceeded to the spot.
14.Further, the evidence of all the prosecution witnesses is consistent that the 1st accused herein and two others were apprehended while moving on motorcycle on Road No.10, Banjara Hills, which is a public road and the search of the accused in the presence of the gazetted officer/PW2 was on the same road. These facts remained unshaken in the cross-examination, thus it can be held that the search was in a public place.
15.To note, section 42 of the NDPS Act, contemplates entry into search a building, conveyance or in an enclosed place. If the seizure is in between sunset and sun rise, the proviso directs for recording the grounds of 7 of 17 SC.NDPS.No.13/2019 seizure. On the other hand, the section 43 of the NDPS Act refers to seizure made in any public place or in transit and the stipulation of recording reasons/belief, is not prescribed under section 43 of the NDPS Act. Further, this section provides that any officer of any department mentioned in section 42 of the NDPS Act may cease or in any public place or any transit, any narcotic or psychotropic substance, in respect of which, he has reason to believe that the offence under the Act stand committed. The officer is also authorised to detain on search of any person whom he has reason to believe to have committed an offence punishable under this Act.
16.The oral evidence of the witnesses, the entries in panchanama/Ex.P2 and the police report/Ex.P5 are limpid that the search was on public road. Therefore, provisions of section 43 of the NDPS Act will apply, but not section 42 of the NDPS Act, as such there was no requirement for the officer conducting search to record the grounds of his belief as contemplated under the proviso of section 42 of the NDPS Act. Therefore, in the factual position of the case, looking for 42(2) of the NDPS Act is not a requirement as the situation is governing by section 43 of the NDPS Act, which does not lay down any such requirement.
17.With regard to finding the accused with contraband, the complainant cum investigating officer/PW5, mediator/PW1, gazetted officer/PW2, the other police officers/PWs 3 and 4 categorically stated that at about 1.20 PM, at Zahera nagar, Road No.10, Banjara Hills, Hyderabad, they found 3 persons proceeding on one Yamaha FZ motorcycle and they (police) stopped them and on enquiry and search, 9 small polythene packets i.e.,(eight grams of Cocaine and one gram of Heroin) were found in the possession of the rider/accused.
18.To note, the mediator/PW1 and the complainant/PW5 specifically stated that from the bag/pouch on the bike’s petrol tank, which is in possession of the rider/1st accused in plastic packets, the contraband were found. But, PWs 8 of 17 SC.NDPS.No.13/2019 2 to 4 did not specifically mentioned the place in place where the bag was found, but they also referred to personal search of the accused. On this point, the 1st accused has not pleaded any theory or his presence elsewhere at relevant time, much less placed any detail or material for consideration. Further, in the cross-examination, the statements of the witness about the presence of the accused finding small polythene packets in the possession of the 1st accused herein, remained uncontraverted.
19.However, to note, the panchayatdar/PW1 stated as that five packets of Cocaine and one packet of Heroin were found in the possession of the rider/1st accused, but all the other witnesses deposed the number of packets found in the accused are nine and the version of all other witnesses is corroborating with the listing in Ex.P2/panchanama. Considering these facts, even though the number of packets mentioned by the PW1 is at variance, as the evidence on record is amply establishing the number of packets seized from the possession of the 1st accused, this difference found not substantial.
20.The other contest is that all the witnesses including the gazetted officer are from the police/investigating agency and the mediators are the stock witnesses. It is well settled that merely the witnesses are the part of the investigating agency, or police, their evidence cannot be disregarded on that sole count, but it is a cause for close scrutiny. Further, though the mediators were also taken part in panchanama in any other proceedings against the accused, it can be a reason for suspicion but the same cannot be sole ground to discredit or to presume any implications. Further, the defence nowhere pleaded that the complainant or mediators or any person involved in the proceedings is having any ill feeling or animocity or any reason to speak against him or having a reason to see that he is somehow convicted. In addition, except rising plea, no fact or circumstance is made out to indicate falsity of the prosecution case, as such, the objections raised, found unsustainable.
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21.That apart, the inability expressed by the witnesses as to specific colour of the bag which was in the possession of the 1st accused and the registered number of the motorcycle, on which the 1st accused and other two were found, the number and make of cellphone are found not vital, as there is consistency in the evidence regarding as to the essential facts. Further, the
PW1’s admission as to his inability to read or write English and cannot say the contents of panchanama/Ex.P2 is also found not significant as the facts stated in the oral evidence are in agreement with the contents of panchanama/Ex.P2.
Therefore, by this evidence, finding the accused along with two others on motorcycle at Zahera Nagar, Road No.10, Banjara Hills and on search, finding nine small polythene packets in the bag, in possession of the 1st accused can be concluded.
22.To prove the material in the small polythene covers found in the possession of the 1st accused is narcotic/psychotropic substance, the
PW5/investigating officer the samples were forwarded to the TSFSL through
ACP, Banjara Hills and Ex.P7 is the FSL report received. The oral evidence of the witnesses about seizing the small polythene packets from the possession of the accused and drawing of samples and the notings in panchanama/Ex.P2, and the FSL report/Ex.P7 is establishing that the samples collected from the packets seized from the accused I.e, S1 and H1 were forwarded vide reference letter
Cr.No.107/PS Banjara Hills/2018, dt:14.12.2018 and the same was received on 15.12.2018.
23.The recording in the report/Ex.P7 noted that the self lock cover labeled as S1 containing white colour powder and H1 containing half white colour powder was tested and held that the item no.1 is Cocaine and the item no.2 is Methamphetamine, a psychotropic substance. The returned covers from the FSL containing remnant samples/MO4 is showing the plastic covers with mark as S1 and H1 which is corresponding with the panchanama/Ex.P2.
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24.In cross-examination, the defence pointed out that the identification of the sample by the witness was basing on the marking on the cover and the panch chits are not disclosing from which accused the sample was seized and its weight. Further, the sample S2 is not there in the remnant samples and that, sealing of cardboard box is not mentioned in the panchanama/Ex.P2 and the charge sheet.
25.In this regard, the evidence on file is disclosing that, the PWs 1 to 4 in their oral evidence did not refer to the manner of collection of samples whereas the complainant/investigating officer as PW5, in chief-examination stated that one sample each of Cocaine and one Heroin packets was taken from the contraband found in possession of each accused and marked as S1 to S3.
However, in cross-examination of prosecution, he admitted the leading suggestion that out of 8 Cocaine packets seized from the possession of the 1st accused, 2 samples of each 1 gram by marking them as S1 and S2 and one
Heroin packet by marking as H1 was seized from the accused and the samples
S1 and H1 were sent to the FSL.
26.However, by the panchanama/Ex.P2, the contraband was seized and collection of the samples and markings. The FSL report/Ex.P7 is referring to the corresponding marks. Hence, identifying the samples by the markings and not mentioning the details on the panch chit cannot be stretched to brush aside the material evidence and the prosecution.
27.With regard to the sample marked as S2, in the report/Ex.P7 or in the remnant samples returned by the FSL, the sample/S2 is not found. However, the panchanama/Ex.P2 is referring to collection of S2 sample and in Form 60, filed by the investigating officer in this court dt:14.2.2019 showing that the S2 sample was also sent to FSL. The Form 60 and the FSL report/Ex.P7 are disclosing that the seized property was submitted to the court and the letter of advice was sent on the same day. Therefore, the human error cannot be ruled out. However, as it is recorded in panchanama which is signed by PWs 1, 2 and 11 of 17 SC.NDPS.No.13/2019 5 and the accused, the drawing of samples including S2 can be concluded, though that sample is missing. The chemical analysis of FSL had proved that the accused was in the possession of Narcotic and Psychotropic Substance and even if the sample S2’s possession is deducted, the evidence is amply proving the possession of quantity more than the small quantity, as such the accused cannot take any advantage of missing sample.
28.Further, the Forensic Science Laboratory’s report/Ex.P7 is referring to the letter of advice and receiving the samples in card board boxwith seals. To note, sending of samples to FSL for chemical examination would be during the course of investigation, as such absence of reference about affixing the seals to the cardboard box in the panchanama/Ex.P2, shall not arise. Further, non- mentioning about the sealing the card board box in which the samples are transmitted in the charge sheet is not giving any inference in favour of the accused particularly as the FSL report/Ex.P7 is specifying that the seals are intact and the proper condition of samples received. Thus, no substance is found in their defence objections to disregard the prosecution case. Hence, it shall be concluded that the samples forwarded for chemical examination to the
FSL and its report/Ex.P7 are establish that the small polythene packets seized from the accused in Narcotic and Psychotropic substance and it is in intermediatory quantity.
29.With regard to mandatory compliance of procedural contemplation of the section 50 of the NDPS Act, the complainant/investigating officer/PW5 deposed that when the 1st accused found with a pouch/bag on the petrol tank and with small colour packets with white colour powder, suspecting it to be narcotic substance, he asked the accused for search and he gave consent to be searched before the gazetted officer. Accordingly, served notice/Ex.P1 and he secured presence of gazetted officer by sending requisition/Ex.P4. After arrival of gazetted officer in his presence and mediators on search, 9 small polythene packets were found in the bag on the petrol tank from the possession of the 12 of 17 SC.NDPS.No.13/2019 accused and the further proceedings were conducted as in the panchanama/Ex.P2.
30.The PW2/gazetted officer deposed that about 1.30 PM on 9.2.2018 he received requisition/Ex.P4. Immediately he went to Zahera Nagar X Roads,
Road No.10, Banjara Hills, there he found Addl. Inspector of Police, staff and panchayatdars, three foreigners with a motorcycle. In his presence, Addl.
Inspector/PW5 conducted personal search and found 8 grams of Cocaine in small packets/MO2 and one packet of Heroin/MO4, 4 cellphones/MO1, one passport and motorcycle/MO3 from the 1st accused. Further, all the accused made separate confessional statements. Two packets from Cocaine packets and the Heroin packet were drawn as samples, marked and the confessional statement and the proceedings were recorded in panchanama/Ex.P2.
31.The mediator/PW1 deposed that after spotting the three persons who were proceeding on Yamaha motorcycle, police stopped and conducted vehicle search and found a bag in the possession of the rider/1st accused, where small packets were found and on enquiry, they informed that those packets contain drugs, then the PW5 after stating that having possession of the drugs is illegal and sent requisition through constable. Thereafter, one sir came and in his presence, the packets in the possession of the accused and the pillion rider were seized under a report, on it himself and another mediator signed.
Further, identified that notice issued to the accused and the panchanamas/Exs.P1 and P2.
32.The PW3 and PW4 has stated that at about 1.30 PM, they saw 3 foreign nationals who were moving on two wheeler Yamaha motorcycle bearing no.TS-8-EF-7796 and they were apprehended and on thorough investigation and they voluntarily admitted their guilt. Thereupon, gazetted officer and panchayatdars were secured and after they reached the spot, the accused were searched and they found some plastic packets containing white powder and 13 of 17 SC.NDPS.No.13/2019 assisted in conducting test with the kit, which indicated the substance as
Cocaine. Further, recorded confession cum seizure panchanama of the accused.
33.The contents of Ex.P1 and the acknowledgment signature of the 1st accused is explaining the appraisal of option to be searched before the
Magistrate or gazetted officer. The request/Ex.P4 to the gazetted officer/PW2
and the presence of gazetted officer during the proceedings is proved by the oral evidence and the signatures on panchanama/Ex.P2, hence the contest that the interaction with the accused is not mentioned in the panchanama and nothing is there to show that the choice of search before the gazetted officer or Magistrate and the consent of the accused, found not acceptable. Further, the requirement of the section 50 of the NDPS Act is that when the person/accused requires, he shall be taken to the nearest magistrate. The presence of the gazetted officer and in absence of any specific claim of the accused at any stage is substantiating the witnesses testimony that the accused had agreed to be searched before the gazetted officer. Further, the provision contemplates that the gazetted officer shall act as witnesses for the search proceedings, except in the circumstance of no reasonable ground for conducting search. Thus, the provision is not mandating to make any endorsement in proof of interaction.
Further, not summoning any other gazetted officer from nearest place or summoning the police officer to act as witness for the search proceedings per se is not fatal unless reasonable ground of prejudice is made out. Therefore, the evidence and the material on record is sufficiently establishing the compliance of requirement under section 50 of the Act.
34.That apart, as per the PW5 and the PW1 that the contraband found in possession of the accused was in a bag on the petrol tank of the motorcycle.
This version is demonstrating that the contraband is found in the bag in the possession of the 1st accused, but not from the personal search. In this context, the authority of Hon’ble Apex Court in State of Punjab Vs. Baljinder Singh and 14 of 17 SC.NDPS.No.13/2019 another reported in 2019 SCC (OSC) 1408, is noteworthy wherein it is held that, “the mandate of section 50 of the Act is confined to the personal search, and if the contraband article is recovered from the bag, although personal search has been made, it does not vitiate the recovery.” However, the case on hand, the presence of gazetted officer during the search is establishing the compliance of the requirements under section 50 of the Act.
35.Further, the Section 57 of the Act casts obligation on the officer who arrest or makes any seizure to submit a report of all particulars of such arrest or seizure shall be sent to his immediate superior within 48 hours of such arrest or seizure. The investigating officer/PW5 deposed that the Ex.P5/report was submitted to the ACP Banjara Hills Division informing the arrest of accused and seizure of property. The defence has not disputed this statement and the communication. This oral evidence coupled with the entries in the report/Ex.P5
dated 9.2.2018 with receipt endorsement on the same day, it shall be held that
there was substantial compliance and the report was sent within the prescribed time. To note, it is settled proposition that the substantial compliance of the direction of this section is sufficient as such, it shall be concluded that the provision of Section 57 of NDPS Act is complied.
36.Therefore, it shall be held that the prosecution established that on 9.2.2018 at about 1.30 PM, at Road No.10, Banjara Hills near Basavatarakam
Hospital, Hyderabad, the accused herein found in possession of more than small quantity of Cocaine and Methamphetamine, Narcotic Substance/psychotropic substance, Thus, the presumptions under section 35 read with 54 of the NDPS
Act, shall be drawn that the accused committed the offence under this Act with culpable mental state in respect of narcotic drug and psychotropic substance and it is for the accused to prove that he is not in conscious possession of the contraband. As the 1st accused did not place any acceptable fact to rebut the presumption, it shall be concluded that the prosecution is able to prove the charge under section 8(c) of the NDPS Act punishable under section 21(B) of the 15 of 17 SC.NDPS.No.13/2019
NDPS Act. Accordingly, the 1st accused is liable to be convicted.
37.With regard to the charge under the section 14(A) of the Foreigners
Act, except the gazetted officer/PW2, none of the witness stated anything about seizing of passport of the accused. However, the panchanama/Ex.P2 is reading that the passport bearing no. 63697040 of Republic of Sierra Leone, in the name of the accused was seized. As the passport is filed by the investigating agency and in absence of any other explanation, it shall be concluded that the passport was seized during personal search of the accused.
Further, the entries in the passport/Ex.P9 are showing that the accused came to
India on Tourist Visa with double entry permission from 12.3.2017 to 11.10.2017.
The physical presence of the accused and his apprehension on 9.2.2018 itself is proving that the accused is overstayed the visa period. The accused has not pleaded any legally acceptable excuse. Hence, the fact of accused’s presence is establishing the commission of offence in violation of the conditions of the valid visa. Accordingly, it shall be held that the material on the record is establishing the offence committed by the accused within the scope of section 14(A) of the
Foreigners Act.
38.In the result, the accused is found guilty for the offence under section 8(c) read with 21(B) of the NDPS Act and 14(A) of the Foreigners Act and he is convicted under section 235(2) CrPC.
Dictated to Stenographer Grade-I transcribed and typed by him,
corrected and pronounced by me in the open court, on this the 18 th day of June, 2021.
METROPOLITAN SESSIONS JUDGE
HYDERABAD.
39.The convict is questioned with regard to the quantum of sentence, for which he pleaded that he has not committed any offence. He is innocent and pleaded for mercy.
40.Having regard to the above submissions, the nature of offence committed by the convict and quantity of contraband involved in this case, this 16 of 17 SC.NDPS.No.13/2019 court is of the opinion that it is not a fit case to apply the provisions of Probation of Offenders Act. As per the record, the convict is in custody since 10.2.2018 to to 16.4.2018 and from 26.3.2019 to till date, in total, he is in custody for 2 ½ years. Under these circumstances, this court is of opinion that the ends of justice will be met, if the convict is sentenced to the period already undergone and also to pay a fine of Rs.10,000/- (Rupees ten thousand only) and in default of payment of fine simple imprisonment for three months for the offence under section 8(c) read with 21(B) of the NDPS Act.
Further, the convict is also sentenced to the imprisonment for the period already undergone and also to pay a fine of Rs.10,000/- (Rupees ten thousand only) and in default of payment of fine simple imprisonment for three months for the offence under the section 14(A) of the Foreigners Act.
41.The SHO, Banjara Hills through Commissioner of Police,
Hyderabad City, shall take up all necessary steps for the deportation of the convict, after serving the sentence.
42.The MO1/4 cellphones and MO3/Yamaha motorcycle shall be confiscated to State, the MO2/6 packets of Cocaine, MO4/Heroin and
MO5/samples shall be produced before the Drug Disposal Committee for destruction, after appeal time is over and subject to result of the appeal if any filed.
43.The convict was appraised about the right of appeal before the
Hon’ble High Court.
Dictated to Stenographer Grade-I transcribed and typed by him,
corrected and pronounced by me in the open court, on this the 18 th day of June, 2021.
METROPOLITAN SESSIONS JUDGE,
HYDERABAD.
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APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR PROSECUTION:- PW.1. A.Kiran Kumar PW.2.K.Srinivas PW.3.V.Kishore PW.4.K.Rami Reddy PW.5.K.Ravi Kumar
WITNESSES EXAMINED FOR DEFENCE:- Nil
EXHIBITS MARKED FOR PROSECUTION:- Ex.P.1 Notice under Section 50 of NDPS Act. Ex.P.2.Admissible portion of confession cum seizure panchanama of accused. Ex.P.3.Photographs of vehicle Ex.P.4.Requisition issued to PW.1. Ex.P.5.Report dated 09-02-2018 Ex.P.6.Report under Section 57 of NDPS Act to ACP. Ex.P.7.Forensic Science Laboratory Report. Ex.P.8.First Information Report. Ex.P9. Passport of Martian Donlock.
EXHIBITS MARKED FOR DEFENCE:- Nil
MATERIAL OBJECTS MARKED:- M.O.1.4 cell Phones. M.O.2.4 packets of cocaine. M.O.3.Yamaha Vehicle. M.O.4.Heroin. M.O.5. Cocaine sample.
METROPOLITAN SESSIONS JUDGE
HYDERABAD