Not Fair Trial, Police Failed To Communicate With Accused Who Was Of Kenyan Origin: Punjab & Haryana High Court Quashes Conviction In Drugs Case

Observing that "it cannot be stated that fair trial has been conducted", the Punjab & Haryana High Court has set aside the conviction of a Kenyan woman in a drugs case after it found that she did not understand the language in which police communicated with her.

Justice Deepak Gupta said, "It cannot be stated that fair trial has been conducted. The entire investigation is held to be vitiated on account of the accused not understanding any communication made to her by the police party."

The Court noted that the record does not reveal that she was aware of Hindi, Punjabi or English language. "All the material documents have been prepared either in Punjabi or in English," it stated.

It further noted that the prosecution witness admitted that he did not know the language in which the accused signed the non-consent and consent memo.

The Court was hearing an appeal filed by one Susie Achayo, a Kenya citizen challenging the order wherein she was convicted under Section 21 (c) of the NDPS Act and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of ₹1 lakh with default sentence of six months.

According to the prosecution, Achayo was suspected of carrying contraband in a bag. After she was apprised of her legal rights and signed a consent memo, the police conducted a search and recovered 800 grams of heroin, it stated.

After hearing the submissions, the court noted that the accused is a permanent resident of Kenya and as per the deposition of SI Rajvir Kaur, the accused "did not know Punjabi, Hindi or English languages and knew only Kenyan language."

"Even Inspector Onkar Singh Brar, the IO of the case, during his deposition pleaded ignorance about the language known to the accused and thus, fair trial has not been ensured in this case," said the Court.

Furthermore, the Court observed, "Section 50(1) of the NDPS Act is to ensure that the authorized officer informs the person proposed to be searched about his right to be searched before a Magistrate or a Gazetted Officer. The authorized officer is also obliged to take the concerned person (the suspect) to the nearest Gazetted Officer of any departments mentioned in Section 42 of the NDPS Act or to the nearest Magistrate, if such person so requires."

Reliance was placed on  Apex Court's decision in State of Punjab v. Baldev Singh (1999), to underscore that "the entire object of informing the suspect, who is proposed to be searched, about his/her right is to enable him to exercise this right - the right to be searched before a Magistrate or a Gazette Officer."

It also referred to Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) wherein it was held that failure to comply with the said provision would render the recovery of the illicit article suspect and vitiate the conviction.

Justice Gupta also highlighted the "numerous material contradictions" in statements given by prosecution witnesses in order to prove compliance of Section 50(1) of the NDPS Act, observing that it creates "doubt about the truthfulness of the entire prosecution case."

The Court noted that one of the prosecution witnesses Inspector Onkar Singh Brar admitted that "none of the memos mentioned the fact that accused knew English or Punjabi, though he voluntarily stated that accused had told him orally, but these facts do not find mention in any of the zimini or any statement. He admitted that he is not aware about the language known to the accused."

Consequently, the Court opined that when there is complete non-compliance of Section 50 of the NDPS Act and numerous material contradictions have surfaced in the statements of material witnesses of the prosecution creating doubt about the truthfulness of the prosecution case, "the conviction of the appellant-accused as recorded by the trial court, cannot be sustained in the eyes of law."

In the light of the above, the appeal was allowed.

Vidit Bansal, Advocate, for the appellant.

Ramandeep Singh, Sr. DAG, Haryana.

SUZIE ACHAYO @ SHIVONJE V. STATE OF PUNJAB

2024 LiveLaw (PH) 168

Click here to read/download the order