In CRA-S-45-2021(O&M)- PUNJ HC- P&H HC orders release of Nigerian national involved in drugs case on completion of emigration and deportation proceedings; Reduces sentence to period already undergone Justice Arvind Singh Sangwan [25-05-2022]

Read Order:Chief Obonna @ Modi @ Prince Vs. State Of Punjab

Monika Rahar

Chandigarh, May 26, 2022: While dealing with an appeal against the conviction of a Nigerian national residing in Delhi for his involvement in a case relating to the recovery of heroin, the Punjab and Haryana High Court has partially allowed the appeal by reducing the quantum of sentence to the period already undergone. During investigation, the Police discovered 150 grams of heroin at the instance of the statement made by the appellant-convict. 

The Bench of Justice Arvind Singh Sangwan thus held, “The appellant will not be released from the Jail till the emigration and the deportation proceedings are completed by Bureau of Immigration or the Senior Superintendent of Police, Jalandhar under Foreigner Regional Registration Office and after due verification, he will be taken to airport by a team, authorized by the Senior Superintendent of Police/F.R.O., Jalandhar, to hand over his custody to the concerned Emigration Authorities.”

Additionally, the Senior Superintendent of Police/F.R.O., Jalandhar was also directed to ensure the deportation of the appellant and to keep him in jail, till the time, formalities of his deportation were completed and he was handed over to Emigration Authorities along with his passport, which was to be released from the custody of the Court/police in due course. Further, the Bench directed the Embassy of Nigeria to make sure that a return air ticket is provided to the appellant, after his deportation process is over.

The facts of the case are such that on receipt of secret information, the Police party traced the co-accused of the appellant who alighted from a private bus carrying a bag. Upon being searched in the presence of DSP Davinder Kumar (a Gazetted Officer), 01 Kg heroin was recovered from a polythene envelope found in the appellant’s bag. 

The co-accused was arrested and in his disclosure statement he named s Chief Obonna @ Modi @ Prince (appellant) resident of Nigeria as a co-accused. The appellant was arrested by the Police party from Delhi and later on they were produced before the Trial Court.  During interrogation, the appellant suffered a disclosure statement and as per his disclosure statement the Police recovered 150 grams of heroin. Samples were sent to the forensic lab for testing. 

The charge-sheet was filed and on finding a prima facie case, charges under Sections 21 (c) & 29 of NDPS Act were framed against the accused, to which he pleaded not guilty and claimed trial. After the conclusion of the prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C. and the entire incriminating evidence, which the prosecution produced against him, was put to him to tender explanation for the same. The appellant-accused denied the allegation of the prosecution and pleaded false implication. 

The trial Court, after hearing the counsel for the parties and appreciating the evidence on record, convicted and sentenced the appellant/accused under Section 21 of NDPS Act, as the prosecution failed to prove its case for offence under Section 29 of NDPS Act.

The case of the counsel for the appellant was that the appellant was arrested on the disclosure statement made by his co-accused and that no recovery was made from his person while such arrest was made. It was further argued that it was highly doubtful that recovery of 150 grams of heroin was effected at the instance of appellant in terms of his disclosure statement. 

It was also submitted that once the trial Court recorded a finding that there was nothing on record to prove that there was any conspiracy between the appellant and co-accused, recovery of 150 grams of heroin was not proved from the appellant. It was also added that out of 04 years R.I. awarded by the trial Court, the appellant already underwent 03 years, 02 months and 07 days and was not involved in any other case under NDPS Act except one FIR under Section 52-A of Prisons Act, which had no direct bearing on merits of the present appeal.

After hearing the counsel for the parties, the Court upheld the judgment of conviction passed by the trial Court, as the same was based on appreciation of prosecution evidence, however, considering aforesaid facts and circumstances of the case, the present appeal was partly allowed and sentence of 04 years R.I. awarded to the appellant was reduced to the period already undergone by him i.e. 03 years, 02 months and 07 days. However, the imposition of fine of Rs.25,000/- was waived off.