Delhi District Court
By Supreme Court In Ajmer Singh vs State Of Haryana 2010 on 2 April, 2011
1
IN THE COURT OF MS. ANJU BAJAJ CHANDNA
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS
(NORTH) DELHI
SC NO. 36/09
STATE
versus
Pappu @ Jiddi S/o Rambabu
R/o C60/61, Jhuggi Basti Priyadarshani Vihar,
Qutub Pul, Sadar Bazar, Delhi
FIR No. : 229/09
Offence U/S : 21 NDPS Act
Police Station : Sadar Bzar
DATE OF INSTITUTION: 25.11.09
JUDGMENT RESERVED ON: 16.3.11
DATE OF JUDGMENT: 30.3.2011
JUDGMENT
1. Accused Pappu @ Jiddi is being prosecuted for the offence u/s 21 NDPS Act for having been found in possession of 150 grams smack containing diacetylmorphine on 7.10.09 at 6 pm at Qutub Road bridge, near gate Priyadarshini Colony, Sadar Bazar, Delhi. The smack was seized and samples were drawn and accused was accordingly arrested. After S.C.No. 36/09 Page 1 of 12 pages 2 completion of investigation, accused was chargesheeted.
2. On 21.12.09, charge was framed against the accused for the offence punishable u/s 21(b) NDPS Act to which he pleaded not guilty and claimed trial.
3. Prosecution examined 9 witnesses in all to bring home the guilt of accused.
4. PW1 ASI Krishan Kumar, recorded the FIR of the present case vide EXPW1/A. During cross examination, he denied that FIR is antedated or that no proceedings were conducted in this case or that accused is falsely implicated.
5. PW2 Inspector Dara Singh, was posted as SHO Sadar Bazar and on receipt of information about apprehension of accused reached the spot. SI Sanjeev Verma informed him about the facts of the case and produced four sealed pulandas, FSL form and carbon copy of seizure memo which he took to PS Sadar Bazar and deposited the same with malkhana. DD no. 46A recorded in this regard is EXPW2/1. He also forwarded report u/s 57 NDPS Act EXPW2/2. During cross examination, he stated that information was received by him at about 6.30 pm. When he reached the spot, SI Sanjeev Verma was doing the paper work. On receiving information from SI Sanjeev Verma, he did not convey the same to senior officers. He denied the suggestion that no case property was deposited by him or that he is deposing falsely.
6. PW3 HC Pradeep Kumar, deposed that on 7.10.09 he was on patrolling duty with SI Sanjeev Verma. At about 6 pm at S.C.No. 36/09 Page 2 of 12 pages 3 Priyadarshini Colony Gate, they saw the accused standing there with black polythene bag and on seeing them, accused turned around concealing the polythene bag. At this PW3 caught hold of the accused on the directions of SI Sanjeev Verma. SI Sanjeev Verma told the accused that he was suspected of carrying intoxicating substance. The public persons were asked to join the proceedings but they expressed their difficulty. At this SI Sanjeev Verma issued notice to the accused u/s 50 NDPS Act to which accused gave his no objection. On search, the black polythene was found containing 14 polythene bags each containing 100 paper pouches containing powder/smack. On weighing the entire powder, it came out to be 115 grams. Two samples of 5 grams each were drawn and sealed into cloth pulandas mark S1 and S2. Remnant smack was separately sealed into cloth pulanda mark A1 by keeping the same in white paper wrapped in polythene pouches. The black polythene and 14 polythene bags and paper pouches, separately sealed in pulanda A2. FSL form was filled up and seizure memo EXPW3/1 was prepared. Information was given to SHO who reached the spot and countersealed the pulanda and left with the case property. SI Sanjeev prepared tehrir and PW3 got the case FIR registered. Further investigation was handed over to SI Sewak Ram Mavi who prepared site plan and recorded FIR number on the papers. Accused was arrested vide arrest memo EXPW3/2, personal search memo EXPW3/3. The case property was produced and identified in the court. During S.C.No. 36/09 Page 3 of 12 pages 4 cross examination, he stated that particulars of FIR number on the cloth pulanda S2 are in handwriting of SHO. He could not identify the handwriting of particulars on cloth pulanda Mark A1. The particulars on A1, A2 were in the handwriting of SI Sanjeev Verma and also on pulanda S2 including the FIR number. They left PS for patrolling on motorcycle . They were in uniform. Accused was overpowered by PW3 himself alongwith SI Sanjeev Verma. Search of the accused was taken by SI Sanjeev Verma. Notice was original and carbon copy and accused was handed over original notice. EXP6 is not the notice which was given to the accused. He could not tell how many copies of FSL form were prepared. The paper work was done by SI Sanjeev Verma. SHO reached the spot in his gypsy and he was accompanied by his driver and operator. The writing work was done while sitting on cement bench and contraband was weighed on electronic weighing machine. He left with rukka at 8.20 pm and returned at about 9.30 pm. He admitted that area of Qutub road is crowded one. They did not call any shopkeeper or residents of the area to join the proceedings. His statement was recorded by SI S.R Mavi. He denied the suggestions that nothing was recovered in his presence or that accused has been falsely implicated.
7. PW4 constable Ajay deposited two pulandas to FSL Rohini on 29.10.09. He further deposed that he took FSL form bearing the seals of SV and DS. The case property remained intact in his custody. He denied the suggestions that no S.C.No. 36/09 Page 4 of 12 pages 5 material was delivered by him to FSL or that there were no seals on the pulandas.
8. PW5 constable Sunil Kumar recorded DD no 65 B regarding departure of HC Pradeep Kumar for patrolling and proved the same vide EXPW5/A.
9. PW6 HC Satayvir Singh was working as MHCM at PS Sadar Bazar on 7.10.09 and deposed about deposition of case property and sending the same to FSL Rohini on 29.10.09 through constable Ajay Kumar. He proved the relevant entries EXPW6/A,B&C. On 18.12.09 sealed parcels and FSL report were deposited by SI Sewak Ram.
10. PW7 Ct. Parkash brought the relevant record of reports u/s 57 NDPS from the ACP office, Sadar Bazar and proved the same vide EXPW7/A&B.
11. PW8 SI Sanjeev Verma has been the initial IO and apprehended the accused alongwith PW3 HC Pradeep Kumar. He proved service of notice to the accused u/s 50 NDPS Act, his reply EXPW8/A, search and seizure of smack from the possession of the accused, weighing and sealing of the same. PW8 further proved rukka EXPW8/A on the basis of which FIR was registered. He also identified the case property so produced. During cross examination, he stated that particulars on pulanda mark S2 are in his handwriting except FIR number. He had asked public persons to join the proceedings prior to the service of notice and he had called some shopkeepers and residents of nearby jhuggies to join the proceedings, but they did not agree. The first document S.C.No. 36/09 Page 5 of 12 pages 6 prepared by him was notice u/s 50 NDPS Act. Original was given to the accused. Signatures of accused were taken on carbon copy. Second document prepared by him was FSL form. Then he prepared seizure memo. He could not tell whether FSL form was prepared with carbon copy or not. He could not recollect whether the carbon copy or the photocopy was prepared of the FSL form. The smack was weighed by him at the spot. He could identify smack by its smell. IO bag was purchased by him and he was carrying the same at the time of patrolling. The weighing machine was electronic with red digital indicators. After seizure memo he prepared rukka. He did not conduct any proceedings in presence of SHO. Writing work was done by him while sitting on the seat at the spot. Second IO left the spot with him after conducting arrest proceedings. He denied suggestion to be deposing falsely.
12. PW9 Inspector S.R Mavi, is the second IO and took over the investigation of the case after registration of FIR. He reached the spot where SI Sanjeev Verma handed over the custody of the accused and original seizure memo, carbon copy of notice u/s 50 NDPS Act to him. He prepared site plan EXPW3/4 and interrogated the accused vide disclosure statement EXPW9/A. He arrested the accused vidememo EXPW3/2 and personal search memo EXPW3/3. The accused was medically examined at Hindu Rao hospital. He prepared report u/s 57 NDPS Act vide EXPW2/2 and sent the case property to FSL for analysis. He filed the chargesheet and also collected the FSL result. During cross examination, he stated S.C.No. 36/09 Page 6 of 12 pages 7 that distance between the spot and PS was about 1.5 km. He requested 23 public persons to join the proceedings but they did not come forward. He recorded the statement of witnesses at the spot. He denied the suggestion that he did not visit the spot or that he is deposing falsely.
13. Thereafter prosecution evidence was closed.
14. Statement of accused was recorded u/s 313 CrPC wherein entire incriminating evidence has been putforth and explained to him to which he pleaded innocence and false implication. He preferred to lead evidence in defence but thereafter no witness was produced by him.
15. I have heard Ld APP for the State, Ld amicus curiae Ms Sadhna Bhatia for the accused and given due consideration to the facts, circumstances of the case, evidence and the record. It is argued by Ld APP that case of the prosecution stands sufficiently proved with the testimony of members of the raiding party and documentary evidence. The mandatory provisions of NDPS have been properly complied with while conducting the raid and affecting the recovery. The CFSL report also confirms recovery of heroin from the possession of the accused and for these reasons conviction of the accused be recorded.
16. On the other hand, it is argued by Ld amicuscuriae that case of the prosecution is doubtful and necessary provisions of NDPS Act have not been complied with particularly the service of notice u/s 50 NDPS Act has not been proper. The extent of diacetyl morphine as per CFSL S.C.No. 36/09 Page 7 of 12 pages 8 report was 7.9 %, thus making the recovery of heroin to the extent of 9.085 grams which amounts to little above the small quantity. No public witness joined the proceedings which further makes the case of the prosecution doubtful.
17. On evaluation of testimony of prosecution witness, memos and documentary evidence prepared in this regard, I am of the opinion that case of the prosecution stands sufficiently proved against the accused. The police officials namely PW8 SI Sanjeev Verma, PW3 HC Pradeep Kumar who apprehended the accused on suspicion and effected the recovery of contraband from him have remained confident and cogent in their depositions and no contradictions or infirmities have emerged in their statements. I find no ground to disbelieve the consistent testimony of these witnesses merely for the reasons that no public witness could be joined during the proceedings. It is evident from the testimony of these witnesses that genuine efforts were made by them to join public witnesses before reaching the spot, also at the spot and even after apprehension of the accused. It has been held by Supreme Court in Ajmer Singh vs State of Haryana 2010 (2) RCR Crl. 132 that non joining of independent witness is not fatal to the prosecution case particularly when efforts were made by the investigating party to join public witness but none was willing.
18. In the present case, I find the testimony of prosecution witnesses confident and convincing and during cross examination they have remained unshaken. So far as S.C.No. 36/09 Page 8 of 12 pages 9 service of notice u/s 50 NDPS Act is concerned, I find that same has been properly served upon the accused. EXP6 the notice and EXPW8/A the reply clearly shows that accused was explained about the statutory rights available to him in this regard. Also on perusal of the record, I find that other provisions of the NDPS Act have been properly complied with. There is no ground to disbelieve the testimony of prosecution witnesses which has clearly established that accused was found in conscious possession of heroin 150 grams containing diacetylmorphine up to (7.9%) making the real quantity as 9.085 grams.
19. Coming to the defence of the accused, it is pleaded that he is innocent and falsely implicated. It has been suggested to the members of the raiding party that accused has been illegally picked up from his house, but no evidence brought to prove the same. In his statement u/s 313 CrPC accused has pleaded false implication at the hands of the police officers in this regard. However, no reason has been attributed to the police for false implication. It is clear that accused has no reasonable or plausible defence in his favour.
20. In view of above discussions, I hold that prosecution has been able to establish its case against the accused and therefore I hold him guilty u/s 21 NDPS Act.
21. Since the percentage of diacetylmorphine was 7.9 %, the actual quantity would be 9.085 grams since the present case pertains to the period prior to the notification dt. 18.11.09. The accused is therefore convicted for possessing S.C.No. 36/09 Page 9 of 12 pages 10 intermediate quantity of heroin u/s 21(b) NDPS Act.
ANNOUNCED IN THE OPEN COURT ON 30.3.2011 (ANJU BAJAJ CHANDNA) ADDL. SESSIONS JUDGE DELHI S.C.No. 36/09 Page 10 of 12 pages 11 IN THE COURT OF MS. ANJU BAJAJ CHANDNA ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE NDPS (NORTH) DELHI SC NO. 36/09 STATE versus Pappu @ Jiddi S/o Rambabu R/o C60/61, Jhuggi Basti Priyadarshani Vihar, Qutub Pul, Sadar Bazar, Delhi FIR No. : 229/09 Offence U/S : 21 NDPS Act Police Station : Sadar Bazar ORDER ON SENTENCE Present : APP for State.
Convict Pappu @ Jiddi from JC.
Heard on the point of sentence. It is submitted that convict is 22 years of age and sole bread winner of his family consisting of his wife and two children. He is previously convicted under NDPS Act and also facing trial in cases of theft and Arms Act. Lenient view is prayed for.
Keeping in view facts and circumstances of the case, I sentence the convict to undergo rigorous imprisonment for one year and fine of Rs 5000/, in default of payment of fine, simple imprisonment for two month u/s 21(b) NDPS Act. Benefit u/s 428 CrPC be given to the convict.
S.C.No. 36/09 Page 11 of 12 pages 12 Copy of the judgment and order on sentence is given to the convict free of cost. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 2.4.2011 (ANJU BAJAJ CHANDNA) ADDL. SESSIONS JUDGE DELHI S.C.No. 36/09 Page 12 of 12 pages