TaxTMI 
TaxTMI 
2020 (5) TMI 492
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....nced to rigorous imprisonment for ten years with a fine of Rs. 1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of two months, for committing the offence under Section 29 of the NDPS Act. Laya was sentenced to rigorous imprisonment for a period of ten years with a fine of Rs. 1,00,000/- each for committing the offences punishable under Sections 21(c), 23(c) and 29 of the NDPS Act. And, in default of payment of fine, Laya was directed to undergo simple imprisonment for a further period of two months. The three sentences were directed to run concurrently. 3. The case set up by the prosecution is that on 14.05.2010 at about 1200 hours, secret information was received by Sh Y.R. Yadav, Superintendent NCB-DZU that one lady, namely Laya Emilyn who is a national of Philippines, holding Passport no. XX3585148, would arrive at Delhi by Emirates Airlines (Flight no. EK510) at about 9:15 am on 15.05.2010, alongwith a huge quantity of cocaine in her baggage. Consequently, a raiding team was formed. The said team reached Terminal 2 of IGI airport at about 8:15 am. After reaching the airport, two persons from public voluntarily joined the r....
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....ouse but nothing was recovered. Subsequently, his statement and the statement of various witnesses were also recorded pursuant to a notice served to him under Section 67 of the NDPS Act. 6. Since the accused persons appeared to have committed offences punishable under the NDPS Act, they were arrested on 15.05.2010 and thereafter, were medically examined. On the basis of the material on record, a complaint was filed. Thereafter, charges were framed against the accused Okafor under Section 29 read with Section 23(c) of the NDPS Act. Laya was charged with committing an offence punishable under Section 23(c) of the NDPS Act and under Section 29 read with Section 23(c) of the NDPS Act. Both the accused pleaded not guilty and were tried for the offences for which they were charged. 7. The Prosecution examined fourteen witnesses in total to prove its case. After examining the evidence, the Trial Court convicted the accused Okafor for the offences for which he was charged. The Trial Court found that the NCB came to know about the accused Okafor and his parentage and address, on the basis of the information provided by the accused Laya. It further noted that the evidence of Okafor's landl....
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.... Officer. The accused Laya collected her baggage from the conveyor belt and after 5-10 minutes, she started moving towards the exit gate. After going out of the exit gate, she tried to contact someone on her mobile phone and thereafter, she tried to engage a taxi. At this point, she was approached by the NCB team and they also introduced the witnesses to her. She was informed about the secret information and on enquiring, she told her name as Laya Emilyn Mananquil and also showed her passport. 11. Thereafter, a notice under Section 50 of the NDPS Act was issued to the accused (Ex.PW-1/B) and she was informed of her legal right to be searched before a Magistrate or Gazetted Officer if she so wished. PW-1 deposed that she refused the same and asked to be searched by any lady officer. She also wrote down the same in her own handwriting on the notice and put her signatures on the same. The notice was also signed by public witnesses. Further, the search authorisation was also signed by the accused. A lady officer took the personal search of the accused. The accused was carrying a blue coloured bag. On opening, it was found to contain seven silver pouches and several other personal belo....
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....nd she was briefed of her legal rights. Thereafter, NCB officials carried out her search and she also signed on the search authorisation. He deposed that thereafter, search proceedings were conducted and on opening the blue colour bag carried by the accused, seven silver colour packets were found containing white colour substance, which tested positive for cocaine. The said packets were transferred to another transparent polythene packet and their aggregate weight was found to be 1.870 kg. 15. Ms Savitri Jaswani, Intelligence Officer at NCB, DZU was examined as PW-3. She deposed that on the day of incident, she was called in the office by Sh YR Yadav, Superintendent, NCB and she was told to accompany them to IGI Airport for searching a lady arriving at the said airport. She deposed that she alongwith three or four Investigating Officers, including GS Bhinder, Sh Vikas Kumar, and the Superintendent went to the airport. Thereafter, she went inside Terminal II of the IGI Airport along with YR Yadav and GS Bhinder. She deposed that the accused Laya arrived in a flight from Dubai and after taking her luggage from conveyor belt, she moved out of the exit gate. Thereafter, she made a cal....
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....r presence. Sh Akhilesh Mishra had asked the questions and Laya had written the answers. 17. Sh. Sanjay Rawat, the Intelligence officer, NCB, DZU was examined as PW-4. He deposed that at about 11:15 am, the accused had come near the VIP parking lot. The NCB team which was following her from inside the airport intercepted her there and seized cocaine, weighing 1.780 kg, from her possession. The seizure proceedings started at about 11:20 am and ended upto 1:30 pm. Thereafter, they left for the NCB office at about 2:15 pm. On the basis of information provided by the accused Layla Emilyn, he constituted a team and on the direction of the Superintendent, they went to Uttam Nagar to find out Mr. Okafor Chukwuka who, as per the information, was residing at C-21, third floor, Hatsal Vihar, Uttam Nagar, New Delhi. After reaching there, they met the owner of the house and he was briefed about the information. He voluntarily agreed to join the proceedings. Thereafter, the door of the house was knocked and a Nigerian man opened the door. On enquiring, he provided his identity as Mr. Okafor Chukwuka Ugochukwu. He was served a notice under Section 50 of the NDPS Act and was informed about his l....
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.... deposed that he recorded the Laya' voluntary statement in the office of DZU, which was tendered by her in her own handwriting (Ex.PW-6/A). He also received the case property from Sh Vikas Kumar on 15.05.2010 and the same was deposited on the same date in the malkhana. The entries were made in the malkhana register regarding the same and a photocopy of the relevant page of the register was exhibited as Ex.PW-1/L. PW6 deposed that subsequently, the accused Okafor was also identified by the accused Laya Emilyn and her statement to this effect was also recorded by him and the same was signed by Okafor in his presence (Ex.PW-6/B). PW6 testified that on 17.05.2010, the sample marked A-1 was taken out by him from the malkhana and was handed over to Sepoy Rajbir (PW-9) for sending it to CRCL for examination. 22. On being cross-examined, PW-6 stated that after concluding the raid at the airport, they reached NCB office at about 1:50 pm and the interrogation on the way was recorded in writing by Sh YR Yadav after reaching the office. The name and address of the other accused person (Okafor) furnished by the accused Laya during the said interrogation were recorded. It is stated that the fir....
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.... was intercepted by the NCB officers. She was served with a notice under Section 50 of the NDPS Act and was briefed about her legal rights. She preferred her search not to be conducted before a Magistrate or a Gazetted Officer and she wrote down on the notice that her search could be conducted by a lady officer of NCB. Accordingly, her personal search was conducted by Smt. Savitri Jaswani, however, nothing incriminating was recovered. On her luggage being searched, seven pouches were found inside and on opening the same, white coloured powder substance was recovered. The same was tested and it tested positive for cocaine. This white substance was put in small polythene zipper pouch and that in a white paper envelope and was marked as A1 and A2. After the conclusion of the proceedings at the airport, they proceeded to the NCB office. 25. In his cross examination, PW-10 deposed that when they returned to the NCB office, IO deposited the seal with him and an entry was made in the seal movement register to this effect. He further stated that on the basis of the statement of the accused Laya, he directed Sh Sanjay Rawat (IO) to constitute a team to find out the coaccused to whom the co....
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....n packets packed in bright packing papers. The said packets were opened and they were found to contain white powder. Further, he deposed that the said powder was then checked by some objects, which were being carried by the said officers and he was informed thereafter that the said white substance was cocaine. The white powder from all the packets was then mixed together and weighed. Thereafter, some quantity of the powder was taken out separately and was hot sealed. The total weight of the white powder was found to be 1.780 kg. The remaining powder was also separately sealed. He deposed that the accused was made to sign all the sealed packets and he along with the other public witness was also made to sign on the said packets. He deposed that thereafter, they (PW-12, the accused and the other witness) were taken to the NCB office at RK Puram, where the accused was interrogated. Thereafter, they were taken to Nawada Metro Station, Uttam Nagar/Dwarka Mor because the lady had disclosed that she was supposed to deliver the white powder to some person, who would meet her there. 28. In his cross-examination, he deposed that the accused was carrying two bags - one of blue colour and the....
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....d her baggage search. The accused agreed to be searched by the lady police officer. He deposed that on the search of her luggage, seven bright coloured packets were found inside the blue bag. The said packets were opened and they contained white powder and the same tested positive for cocaine. Thereafter, he was called to the NCB office and his statement was recorded on the same day. He deposed that he was again called at the NCB office after six months. He further deposed that on the date of the incident, he had written his statement in Hindi. Thereafter, the NCB officers prepared his statement in English and read the contents of the same to him. However, he further deposed that the NCB officers had written a statement in English (Ex.PW-1/C), recording the proceedings which happened at the spot and then read over the contents to him PW-14. Thereafter, PW-14 had written the same statement in Hindi. He deposed that his signatures were not taken on the statement which was prepared by the NCB officers in English. 32. In his cross-examination, he stated that all the written proceedings were conducted in the NCB office and not at the airport. He stated that the bag of the accused was s....
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....on phone after exiting the airport, there is no material on record to indicate as to whether any investigations were conducted to ascertain the identity of that person. He submitted that although two mobile phones were allegedly recovered from Laya, there is no material to indicate that the analysis of the said phones established that she was in contact with the co-accused Okafor. He relied upon the decision of the Supreme Court in Tomaso Bruno and Anr. v. State of Uttar Pradesh: (2015) 7 SCC 178 in support of his contention that scientific and technical evidence is required to be gathered by the concerned official. 37. Fifth, he submitted that the provisions of Section 52A of the NDPS Act were not followed. He submitted that the manner of drawing a representative sample has been prescribed and the same is required to be conducted in the presence of a Judicial Magistrate. He also referred to the decision of the Supreme Court in Union of India v. Mohan Lal & Anr.: (2016) 3 SCC 379, wherein the Supreme Court had noticed the above aspect. He pointed out that in the proceedings before the Supreme Court, NCB had submitted that they do not draw samples at the time of seizure but do so i....
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....ution. 42. Mr Prabhakar and Mr Kanhaiya Singhal, learned counsel appearing for Okafor, submitted that the confession statement of Laya or Okafor recorded under Section 67 of the NDPS Act could not be relied upon by the prosecution as the same had been retracted at the first available moment. Mr Prabhakar stated that although, the statement made by Laya had not been retracted when she had been produced before the court, however, he pointed out that at that stage, Laya did not have any counsel. She had retracted her statement on the first available occasion when she had been provided legal counsel. He further submitted that the question whether the confessional statement could be relied upon has been referred by the Supreme Court to a Larger Bench in Tofan Singh v. State of Tamil Nadu: (2013) 13 SC 344. 43. Mr Kanhaiya Singhal contended that apart from the statement of Okafor and Laya recorded under Section 67 of the NDPS Act, there was no material whatsoever to establish any conspiracy between Laya and Okafor. He submitted that the said statements could not be relied upon. Firstly, for the reason that they were recorded while both Okafor and Laya had been detained by NCB officials....
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....C 609, wherein the Court had held that provisions of Section 50 of the NDPS Act are mandatory. The court held that the concept of substantial compliance is not borne out from the language of the said Section, therefore, strict compliance with Section 50(1) of the NDPS Act is required. 47. The decision of the Supreme Court in State of Punjab v. Baljinder Singh and Anr.: (2019) 10 SCC 473 has little application in the facts if this case. In that case, the contraband was recovered on search of a motor vehicle. In the aforesaid context, the Court held that merely because there was a non-compliance of Section 50 of the NDPS Act as far as personal search was concerned, no benefit could be extended to invalidate the effect of recovery from the search of the vehicle. It is material to note that the Supreme Court was not considering a question where recovery had been effected from a bag being carried by a person. 48. The next aspect is whether provisions of Section 50 have been complied with. The fact that Laya was not searched in presence of a Magistrate or a Gazetted Officer does not ipso facto mean that provisions of Section 50 were not complied with. The decision of the Supreme Court ....
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....that required that the search be conducted in the presence of the person being searched. Mr Prabhakar referred to the testimony of PW-3 (Ms Savitri Jaswani). She had stated that she had taken Laya to the toilet in the airport and then searched her, but nothing was recovered. She stated that thereafter, she came out with Laya at the exit gate of the airport and there, other members of the team were conducting the search of the luggage of the accused (Laya). According to Mr Prabhakar, this clearly established that the search of Laya's baggage had been conducted in her absence. He submitted that this was also corroborated by the testimony of PW-1 (Shri Vikash Kumar). He testified that IO Smt. Savitri Jaswani took the personal search of the accused Laya and the other members started taking search of her luggage. Whilst PW-1 denied the suggestion that the baggage of Laya (accused) was searched while she was away with the lady official to the toilet area; it is apparent that the search of Laya's baggage was conducted almost simultaneously. While, PW-3 (Savitri Jaswani) had searched Laya at a public convenience located outside the airport, the other officers had opened her bag and searche....
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....Apart from PW-1 and PW-3 testifying that Laya had collected her bags from the conveyor belt, none of the witnesses have deposed as to how the bag in question was identified as the one that was checked in by Laya. Concededly, the bag from which contraband was allegedly collected did not contain any document that would indicate the same as belonging to Laya. Surely, she would have the corresponding baggage tag with her. 55. Laya testified as DW1. She stated that she had two bluecoloured bags and the bags produced in court did not belong to her. She was not specifically cross-examined on this testimony. 56. The fact that the seizure memo bears the signatures of the independent witnesses is quite meaningless in view of the fact that (a) none of them have testified that they had signed the same at the spot but testified - contrary to the case of the prosecution - that all documents (apart from the notice) were prepared at the NCB office; (b) that neither of the public witnesses were proficient in English; (c) that the testimony of PW-12 regarding the recovery of contraband from cardboard boxes is contrary to the facts as stated in the seizure memo; and (d) the alleged statement made i....
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....tral Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer ....
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.... in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. 17. The question of drawing of samples at the time ofseizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure. 18. Be that as it may, a conflict between the statutoryprovision governing taking of samples and the Standing Order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of t....
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....mpliance with Section 52A of the NDPS Act. It is also relevant to note that NCB had filed an affidavit before the Supreme Court in the aforementioned case affirming that it did not draw samples at the spot. This was noticed by the Supreme Court in Paragraph No. 13 of their decision. Whilst, it is clear that provisions of Section 52A of the NDPS Act are required to be complied with, it is also necessary to observe that the decision in Union of India v. Mohal Lal (supra) was rendered on 28.01.2016 and the seizure in the present case was effected in the year 2010. The Supreme Court had also noticed that there was certain confusion with regard to the said issue and most of the states and central agencies were following different practices. In the circumstances, the sampling of the illicit substance cannot be held to be invalid only for the reason that the samples had been allegedly drawn on the spot. Having stated the above, it is also necessary to observe that a close scrutiny would be required as to the manner in which samples were drawn and had been stored in order to sustain a conviction on the basis of the seizure. 61. Although the testimonies of the public witnesses are inconsis....
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....stency in the testimony of PW-6 (Insp. Akhilesh Kumar Mishra) and the testimony of PW-10 (Shri Y. R. Yadav) and Shri Rajbir (PW-9). Insp. Akhilesh Kumar Mishra (PW-6) had deposed that he had withdrawn the samples from the malkhana and handed it over to Sepoy Rajbir for sending it to CRCL for examination. This is contrary to the testimony of Shri Y. R. Yadav (PW-10), who claimed that he had handed over the said samples to the driver (Rajbir). Rajbir, who deposed as PW-9, also confirmed that he had received one packet marked as A-1 from Shri Y. R. Yadav on 17.05.2010. However, there is no paper trail, which indicates that Insp. Akhilesh Kumar had handed over the said samples to Shri Y. R. Yadav to complete the chain of custody. On the contrary, he had testified that he had handed over the said samples to Rajbir. Shri Yadav (PW-10) has not testified as to how he acquired the possession of the sample marked as A-1. It is important to note that there is also an issue as to the possession of the seal in question (seal of Narcotics Control Bureau DZU-5). It has been established that the seal was first handed over by Shri Yadav (PW-10) to Shri Vikash Kumar (PW-1). PW-1 had testified that h....
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....roduced before a Magistrate - when they did not have any legal assistance - cannot be held against them. It is not disputed that they had retracted their statement on the first occasion after they were provided legal assistance. 66. Apart from the fact that the statements recoded under Section 67 of the NDPS Act had been retracted, it would be essential to examine their evidentiary value. In a recent decision of the Supreme Court in Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence: (2018) 8 SCC 271, the Supreme Court had explained the evidentiary value of such statements. 67. There is a raging debate whether any statement made to officials of NCB would be admissible in evidence. It is contended that officials of NCB are police officers for all intents and purposes; therefore, any confessional statements made before them would be inadmissible in evidence. The NCB contends that their officials are not police officers and therefore, the confessional statements made before them and recorded under Section 67 of the Act would be admissible in evidence. The NCB relies on the decision of the Supreme Court in Kanhaiya Lal v. Union of India: (2008) 4 SCC 6....
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.... the conditions as set out in Section 53A of the NDPS Act are met. Concededly, these conditions are not in this case. However, NCB does not seek to rely on the provisions of Section 53A of the NDPS Act but Section 67 of the NDPS Act. 70. Section 67 of the NDPS Act contains provisions which empower an officer to call for information. Section 67 of the NDPS Act is set out below:- "67. Power to call for information, etc. - Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act,- (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case." 71. The contention that a statement made under Section 67 of the NDPS Act should be read as evidence of the facts as stated therein is required to be considered in the c....
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....ssion can only be used to "lend assurance to other evidence against a co-accused". 74. After referring to the aforesaid decisions, the Supreme Court held as under:- "10. Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept." 75. The law laid down in Kashmira Singh (supra) was approved by the Constitution Bench of the Supreme Court in Hari Charan Kurmi v. State of Bihar: (1964) 6 SCR 623. In that case, the Court after referrin....
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....h Kumar, IO was present while the statement was being recorded. Thus, there were atleast three NCB officials present in the room where she was detained, while her statement was being recorded. Curiously, Laya's statement is in two parts. According to PW-6, the first part was concluded at about 3:30 PM. It is important to note that the last portion of the first part of the said statement is in question and answer form. The questions posed by PW-6 were dictated and are also recorded by Laya by her own hand. This also indicates that PW-6 had at least partly dictated the statement, which is alleged to be the voluntary statement of Laya. In the first part of her statement, which is stated to have been concluded at around 3:30 PM, Laya had disclosed the name of Okafor and his address. PW-6 had testified that during recording of the statement he did not give any information to the IO. However, after conclusion of the statement, Laya was arrested and her second part of the statement was recorded after she had identified Okafor, who had been produced before her. 78. Considering the circumstances, this Court has serious doubts whether the statement of Laya can be stated to be voluntary. She....
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....also present along with Laya. However, PW-10 Shri Yadav had stated that she had dictated her statement which was written by Akhilesh Mishra and the same was in presence of the IO Sanjay Rawat. Further, he was present in the room as well. 83. Apart from the above inconsistencies, it is material to note that insofar as disclosure of Okafor and his residential address is concerned, it only finds mention in the statement of Laya, which was produced and marked as Ex.6/A. Apart from this, there is no other material where the name of Okafor or his residential address is recorded. According to PW-6, the statement made by Laya was not disclosed till it was concluded, that is, about 3:30 PM. However, prior to that time, PW-10 (Sh S. R. Yadav) had already issued directions for apprehending Okafor. A team was constituted by Sanjay Rawat (PW4) for the aforesaid purpose and the said team left the NCB office at 2:15 PM, that is barely fifteen minutes after Laya had been brought from the airport to the NCB office. 84. Although it has been stated that the name of Okafor and his address had been written on a rough paper, the same has not been produced on record. 85. Sanjay Rawat (PW-4) had stated....
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....did not record the said information in writing separately except in the statement of the accused Laya. And, he was not given the copy of that information. 88. It appears from the above that there is significant amount of confusion as to when name of Okafor and his residential address had cropped up. According to Sanjay Rawat, the same was informed to him by Shri S. R. Yadav (PW-10). PW-10 states that he became aware of the same on the information being recorded in Laya's statement, which was not recorded separately. PW-6 adds another twist to it. He states that the said information had been recorded by PW-10 (S. R. Yadav) on a rough piece of paper that was handed over. These testimonies are not consistent and raise material doubt as to any theory of a conspiracy between the two appellants, Laya and Okafor. 89. As noticed above, the statement made by Laya was retracted and this Court is of the view that the same could not have been considered voluntary. Even, if the statement is considered as being made voluntarily, the same could not form the sole basis of Okafor's conviction. The evidentiary value of such a statement, as noticed above, can at best be corroborative and not suffic....
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....tayed at the residence of Okafor. His neighbours were not contacted to verify the same. Although the statements mentioned other persons (Chris, Onononkwa, Henry and Dave), but there is no material to indicate that any investigation was done to find out about their whereabouts. 93. At this stage, it would be relevant to refer to the decision of the Supreme Court in Mohd. Fasrin v. State: (2019) 8 SCC 811. In that case, the Court found that the only material on the basis of which the accused were convicted was the statement of the co-accused and his own. In that case also, certain other persons had been named but no investigation had been carried out. In this context, the observations of the Supreme Court are relevant and are reproduced below:- "6. As far as the present appellant is concerned, the only evidence, if it can be called that, is the statement of a co-accused (Accused 2) and his own alleged confession. As far as statement of co-accused (Ext. P41) is concerned, in that the co-accused states in great detail as to how he came into contact with one other person also called Mohammed in Bombay who had instructed him to go to Manglapuram from Bombay. There he was again asked t....
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....g the confession. No such material has been brought on the record of this case. It is also well settled that a confession, especially a confession recorded when the accused is in custody, is a weak piece of evidence and there must be some corroborative evidence. The confession of the co-accused, which was said to be a corroborative piece of evidence, has been discussed above and is of no material value. Therefore, other than the two confessional statements - one of the co-accused and the other of the accused, the prosecution has gathered no evidence to link the appellant with the commission of the offence. As such, without going into the legality of the admissibility of the confession, we hold that even if these confessions are admissible then also the evidence is not sufficient to convict the accused." 94. There is yet another important aspect that was completely ignored by the Trial Court. According to the prosecution, Laya was accosted while she was trying to arrange taxi at the airport. PW-1 had testified that she was speaking to someone on her mobile phone. Two mobile phones were also seized. The report submitted by PW-1 as well as the seizure memo (PW-1/C) also records that ....