Delhi District Court
State vs . Bhagwat Kishore on 15 January, 2015
IN THE COURT OF SH. AJAY KUMAR MALIK: METROPOLITAN MAGISTRATE-(CENTRAL)-04 TIS HAZARI COURTS, DELHI STATE VS. BHAGWAT KISHORE FIR NO. 72/02 P.S. : Narcotics Branch, Kamla Market Unique Case ID No. :02401R0917382003 Date of institution of case :25.11.2002 Date on which case reserved for :15.01.2015 judgment Date of judgment :15.01.2015 JUDGMENT U/S 21/61/85 NDPS Act a)Date of offence :24.09.2003. b)Offence complained of :U/s 21/61/85 NDPS Act. c)Name of accused, his parentage :Bhagwat Kishore & residence S/o Sh. Om Prakash R/o B-5184, Gali No. 114, Sant Nagar, Burari, Delhi. d)Plea of accused :Pleaded not guilty e)Final Order :Convicted JUDGMENT
FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 1 of 23 BRIEF FACTS AND REASONS FOR DECISION :
Case of the prosecution in brief is as follows:
1. On 24.02.2002 at about 09:40 AM SI Bakhtawar Singh received the secret information regarding supply of heroin at about 12:30 AM to 11:30 AM by accused Bhagwat Kishore at gate of St. Stephen Hospital. The information was conveyed to SHO concerned. After verification of information from the secret informer, the same information was conveyed by SHO concerned to ACP Narcotics, Ram Prakash Sharma. On receiving the directions for raid from the ACP, DD No. 8 was registered and handed over to SI Bakhtawar Singh. SI Bakhtawar Singh along with secret informer reached the main gate of St. Stephen Hospital at about 10:35 AM and asked the passersby and three TSR drivers to join the raiding party but they refused to join the same due to their own personal constraints. At about 10:50 AM, at the instance of secret informer accused Bhagwat was apprehended while coming from Tis Hazari Court side. SI Bakhtawar Singh apprised the accused about himself and his staff and also with the secret information with them. SI Bakhtawar Singh issued a notice U/s 50 NDPS Act to the accused, same was also read over to the FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 2 of 23 accused. Accused was also apprised that he can get himself personally searched in presence of some gazetted officer but the accused refused for such personal search before some gazetted officer and gave his refusal on the notice U/s 50 NDPS Act in his own handwriting. On the cursory personal search of the accused -
Bhagwat Kishore, one waxy pouch tied with rubber band was recovered from right side pocket of blue pant worn by the accused
- Bhagwat Kishore. On checking, the brown coloured powder was found in that waxy pouch which was found to be heroin on checking by field testing kit. The heroin along with waxy pouch was found to be weighing 260 gms. out of which two samples of 5 - 5 gms. each heroin were taken and tied up with the rubber band. The pullinda was prepared and both the samples were given the nomenclature of Mark A and Mark B. The remaining 250 gms. of heroin was kept back into the same transparent waxy pouch and pullinda was prepared as Mark C. FSL form was filled. SI Bakhtawar Singh applied his seal of B-7-PS-NB Delhi on all the three pullindas, Marked as Mark A, B and C, and also on the FSL form. The seal after use was handed over to Ct. Ajeet Singh. All the three pullindas along with FSL form were seized by SI Bakhtawar Singh. The complaint was prepared by SI Bakhtawar Singh and FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 3 of 23 was sent for registration of FIR through Ct. Umesh. All the three pullindas - A, B, C, FSL form and the carbon copy of seizure memo of heroin U/s 55 NDPS Act were sent to Duty Officer along with case property and was produced before SHO Narcotics. All the three pullindas and FSL Form were counter sealed by SHO Narcotics Branch with his seal of SHO NBR Delhi and was deposited in Malkhana. After registration of case, the further investigation was handed over to SI Bhoop Singh. IO/SI Bhoop Singh prepared the site plan, recorded the statement of the witnesses, arrested the accused - Bhagwat Kishore and recorded disclosure statement of the accused. The samples were sent to FSL and result was obtained. After completion of investigation, the challan was filed in the court on 25.11.2002. Cognizance was taken by the court for the offence.
2. On finding prima facie enough material on record, charge U/s 21/29 NDPS Act was framed against the accused - Bhagwat Kishore vide order dated 17.08.2004 regarding possession of 260 gms. of heroin containing 0.5% of diacetylmorphine U/s 21/61/85 NDPS Act to which accused pleaded not guilty and claimed trial instead. Vide orders of same date, another accused namely Jagdish @ Pare was discharged by FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 4 of 23 Ld. Special Judge.
3. Matter was then listed for PE. Prosecution has examined as many as eight witnesses to prove its version.
4. Prosecution got examined Ct. Jeet Singh as PW1 who deposed that on 24.09.2002 while being posted at PS Narcotics Branch, Kamla Market, Delhi at about 10:10 AM, SI Bakhtawar Singh constituted the raiding party constituting of PW1, HC Roshan Lal and Ct. Umesh Tyagi. PW1 further deposed that the government vehicle was being driven by Ct. Tavinder. At about 10:35 AM they reached at main gate of St. Stephen Hospital and vehicle was parked in the taxi stand and driver/Ct. Tavinder was directed to remain present at the spot. PW1 further deposed that SI Bakhtawar Singh requested four shopkeepers and three TSR drivers to join the raiding party but all of them refused to join the raiding party due to their personal reasons. The raiding party was briefed by SI Bakhtawar Singh. The area of about 50 yds. was cordoned near main gate of St. Stephen Hospital. At about 10:50 AM, the accused Bhagwat Kishore was apprehended at the instance of the secret informer. The accused was apprised about secret information with the raiding party and notice U/s 50 NDPS Act was issued to the accused. The notice was read over and FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 5 of 23 explained to the accused. The accused was also apprised that it is his legal right to get him personally searched in the presence of some gazetted officer and the accused can also take search of any member of raiding party before giving his search to the raiding party but the accused refused to both the things and recorded his refusal in his own handwriting on the notice U/s 50 NDPS Act. PW1 proved the notice U/s 50 NDPS Act as Ex.PW1/A and reply to same as Ex.PW1/B. The passersby and TSR drivers refused to join the raiding party and thereafter, SI Bakhtawar Singh formally searched the accused. It is further deposed by PW1 that on cursory personal search of the accused - Bhagwat Kishore, one waxy pouch tied with rubber band was recovered from right side pocket of blue pant worn by the accused - Bhagwat Kishore. On checking, the brown coloured powder was found in that waxy pouch which was found to be heroin on checking by field testing kit. The heroin along with waxy pouch was found to be weighing 260 gms. out of which two samples of 5 - 5 gms. each heroin were taken and tied up with the rubber band. The pullinda was prepared and both the samples were given the nomenclature of Mark A and Mark B. The remaining 250 gms. of heroin was kept back into the same transparent waxy pouch and pullinda was prepared as Mark FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 6 of 23 C. FSL form was filled. SI Bakhtawar Singh applied his seal of B-7-PS-NB Delhi on all the three pullindas, Marked as Mark A, B and C, and also on the FSL form. PW1 further deposed that the seal after use was handed over to him. PW1 proved the recovery memo as Ex.PW1/C. PW1 further deposed that one rukka was pen down by HC Roshan Lal at the dictation of SI Bakhtawar Singh and was handed over to Ct. Umesh along with all the sealed parcels, FSL Form and carbon copy of seizure memo. PW1 further deposed that at about 03:00 PM SI Bhoop Singh reached at the spot and received the papers from SI Bakhtawar Singh. IO/SI Bhoop Singh prepared the site plan at the instance of SI Bakhtawar Singh and also recorded the statement of PW1. PW1 proved the transparent polythene as Ex.P1 and brown sticky substance as Ex.P2. PW1 further deposed that at the time of recovery the brown sticky substance was in the powder form. PW1 also proved the remnants of samples as Ex.P3. PW1 further proved the carbon copy of notice U/s 50 NDPS Act as Ex.PW1/D. 4.1 During cross examination, PW1 admitted that no persons from taxi stand, no person from St. Stephen Hospital was asked by the IO to join the investigation. PW1 further admitted that the solutions from the field testing kit were not seized by the SI FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 7 of 23 Bakhtawar Singh and were thrown after testing the contraband. PW1 further admitted that SI Bhoop Singh reached at the spot at about 03:00 PM and PW1 remained along with SI Bhoop Singh till 05:20 PM.
5. Prosecution further examined HC Roshan Lal as PW2 who deposed that on 24.09.2002 while being posted at PS Narcotics Branch, Kamla Market, Delhi at about 10:10 AM, SI Bakhtawar Singh constituted the raiding party constituting of PW2, Ct. Ajeet and Ct. Umesh. PW2 further deposed that the government vehicle was being driven by Ct. Tavinder. At about 10:35 AM they reached at main gate of St. Stephen Hospital and vehicle was parked in the taxi stand and driver/Ct. Tavinder was directed to remain present at the spot. PW2 further deposed that SI Bakhtawar Singh requested four shopkeepers and three TSR drivers to join the raiding party but all of them refused to join the raiding party due to their personal reasons. The raiding party was briefed by SI Bakhtawar Singh. The area of about 50 yds. was cordoned near main gate of St. Stephen Hospital. At about 10:50 AM, the accused Bhagwat Kishore was apprehended at the instance of the secret informer. The accused was apprised about secret information with the raiding party and notice U/s 50 NDPS FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 8 of 23 Act was issued to the accused. The notice was read over and explained to the accused. The accused was also apprised that it is his legal right to get him personally searched in the presence of some gazetted officer and the accused can also take search of any member of raiding party before giving his search to the raiding party but the accused refused to both the things and recorded his refusal in his own handwriting on the notice U/s 50 NDPS Act. PW1 already proved the notice U/s 50 NDPS Act as Ex.PW1/A and reply to same as Ex.PW1/B. The passersby and TSR drivers refused to join the raiding party and thereafter, SI Bakhtawar Singh formally searched the accused. It is further deposed by PW2 that on cursory personal search of the accused - Bhagwat Kishore, one waxy pouch tied with rubber band was recovered from right side pocket of blue pant worn by the accused - Bhagwat Kishore. On checking, the brown coloured powder was found in that waxy pouch which was found to be heroin on checking by field testing kit. The heroin along with waxy pouch was found to be weighing 260 gms. out of which two samples of 5 - 5 gms. each heroin were taken and tied up with the rubber band. The pullinda was prepared and both the samples were given the nomenclature of Mark A and Mark B. The remaining 250 gms. of heroin was kept back into the FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 9 of 23 same transparent waxy pouch and pullinda was prepared as Mark C. FSL form was filled. SI Bakhtawar Singh applied his seal of B-7-PS-NB Delhi on all the three pullindas, Marked as Mark A, B and C, and also on the FSL form. PW2 further deposed that he has put his signatures on the recovery memo which has already been proved as Ex.PW1/C. PW2 further deposed that SI Bakhtawar Singh gor prepared the rukka and same was handed over to Ct. Umesh Tyagi. PW2 further deposed that at about 03:00 PM SI Bhoop Singh reached at the spot and received the papers from SI Bakhtawar Singh. IO/SI Bhoop Singh prepared the site plan at the instance of SI Bakhtawar Singh and also recorded the statement of Ct. Ajeet at about 03:20 PM. PW2 proved the personal search memo of accused as Ex.PW2/A, arrest memo of accused as Ex.PW2/B and disclosure statement of the accused as Ex.PW2/C. PW2 further deposed that at about 06:00 PM they reached at the house of co-accused - Jagdish @ Pare at Subzi Mandi, Ghanta Ghar but could not found him. PW2 identified the case property i.e. transparent polythene already Ex.P1 and brown sticky substance already Ex.P2. PW2 further deposed that at the time of recovery the brown sticky substance was in the powder form. PW2 further identified the remnants of samples already Ex.P3. PW2 further FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 10 of 23 correctly identified the carbon copy of notice U/s 50 NDPS Act already Ex.PW1/D. 5.1 During cross examination, PW2 admitted that no written information was given to ACP or DCP in his presence. PW2 further admitted that no persons from taxi stand, no person from St. Stephen Hospital was asked by the IO to join the investigation. PW2 further admitted that the solutions from the field testing kit were not seized by the SI Bakhtawar Singh and were thrown after testing the contraband. PW2 further admitted that no advocate from the chambers situated at Tis Hazari was asked to join the raiding party. PW2 also stated that the digit of electronic weighing machine were display red in colour.
6. Prosecution examined HC Gyan Prakash as PW3 who deposed that on 18.09.2002 he was posted as MHC (M) at Narcotics Branch, Kamla Market, Delhi. On that day, SHO/Inspr. S.P. Kaushik deposited three parcels Mark A, B and C along with FSL Form duly sealed with the seal of 7BPS NB Delhi and also with the seal of 1 SHO NBR Delhi along with carbon copy of seizure memo. PW3 further deposed that the SHO deposited the case property with him at 01:40 PM and he has made entry to this fact at Serial No. 280 in Malkhana Register. PW3 further deposed FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 11 of 23 that on 26.09.2009 the sample parcel Mark A along with FSL Form were sent to FSL office, Malviya Nagar vide RC No. 85/21. On 30.10.2002, the result of the sample was received which were handed over to IO and remnants were deposited in Malkhana by making the relevant entry at Serial No. 280. PW3 further deposed that on 18.09.2009 SI Bhoop Singh deposited the personal search articles of the accused in the Malkhana vide Serial No. 280 and proved the entry no. 280 and original RC as Ex.PW3/A and Ex.PW3/B respectively.
6.1 During cross examination PW3 admitted that he has not mentioned about forwarding letter of SHO in Road Certificate and has also not obtained the signatures of Ct. Naresh in the column No. 7 in register no. 19 when the sample parcels were sent to FSL.
7. Prosecution further got examined Ct. Naresh as PW4 who deposed that on 26.09.2002 he has taken the sample parcels Mark A sealed with the seal of 7 APS NB Delhi and also with the seal of 1 SHO NBR Delhi from MHC(M) vide RC No. 85/21 and deposited the same in the FSL Office, Malviya Nagar and samples were not tampered with till it remained in his possession.
8. Prosecution further got examined HC Vijender as PW5 who deposed who deposed that on 24.09.2002 he received the FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 12 of 23 rukka at PS Narcotics Branch and proved the DD No. 17 dated 24.09.2002 as Ex.PW5/A, FIR No. 72/02 as Ex.PW5/B and DD No. 19 as Ex.PW5/C.
9. The prosecution got examined Ct. Umesh Tyagi as PW6 who deposed that on 24.09.2002 at about 10:10 AM he joined the raiding party with SI Bakhtawar Singh, Ct. Ajeet and HC Roshan Lal in the Government Vehicle bearing No. DL1CF5342 with driver Ct. Tavinder Singh. PW6 further deposed that at about 10:35 AM they reached at the gate of St. Stephen Hospital where SI Bakhtawar Singh asked 3 - 4 passersby, 3 - 4 nearby shopkeepers and 3 - 4 TSR drivers to join the raiding party but they refused to join the same on telling their personal difficulties. PW6 further deposed that about 10:50 AM SI Bakhtawar Singh apprehended the accused - Bhagwat Kishore and apprised that they have information that accused is indulged in supply of heroin and his search may be conducted in the presence of some gazetted officer. PW6 further deposed that SI Bakhtawar Singh also apprised the accused that he may take search of raiding party as both are his legal rights. SI Bakhtawar Singh got served the Noice U/s 50 of NDPS Act to the accused and also read over and explained the same to the accused. PW6 also deposed that on FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 13 of 23 cursory personal search of the accused - Bhagwat Kishore, one waxy pouch tied with rubber band was recovered from right side pocket of blue pant worn by the accused - Bhagwat Kishore. On checking, the brown coloured powder was found in that waxy pouch which was found to be heroin on checking by field testing kit. The heroin along with waxy pouch was found to be weighing 260 gms. out of which two samples of 5 - 5 gms. each heroin were taken and tied up with the rubber band. The pullinda was prepared and both the samples were given the nomenclature of Mark A and Mark B. The remaining 250 gms. of heroin was kept back into the same transparent waxy pouch and pullinda was prepared as Mark C. FSL form was filled. SI Bakhtawar Singh applied his seal of B-7-PS-NB Delhi on all the three pullindas, Marked as Mark A, B and C, and also on the FSL form. PW6 further deposed that he has put his signatures on the recovery memo which has already been proved as Ex.PW1/C. PW6 further deposed that SI Bakhtawar Singh got prepared the rukka and same was handed over to PW6 for registration of FIR. PW6 further deposed that on reaching the police station at about 01:45 PM he handed over two sample parcels, heroin parcel, form FSL and copy of seizure memo to SHO and handed over the rukka to Duty Officer/HC Bijender. PW6 FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 14 of 23 further deposed that Inspr. S.P. Kaushik affixed his seal of 1 SHO NBR Delhi on two sample parcels and heroin parcel and Form FSL also. PW6 further deposed that SHO called the MHC(M)/HC Gyan Prakash in his office and handed over parcel along with FSL form for making the entries in register No. 19 qua FIR No. 72/02 U/s 21/61/85 NDPS Act and further investigation was marked to SI Bhoop Singh. PW6 correctly identified the transparent polythene as Ex.P1, brown sticky substance as Ex.P2, remnant of sample as Ex. P3 and carbon copy of notice already exhibited as Ex.PW1/D.
10. The prosecution got examined ACP S.P. Kaushik as PW7 who deposed that on 24.09.2002 he was posted as SHO, PS Narcotics Branch, Kamla Market. At about 09:45 AM, SI Bakhtawar Singh approached him along with Secret Informer with the information of supply of heroin and same was further conveyed to Sh. R.P. Sharma, the then ACP Narcotics. DD No. 8 was registered and same was forwarded to ACP Narcotics. PW7 proved DD No. 8 as Ex.PW7/A. PW7 further deposed that at about 01:30 PM Ct. Umesh produced the carbon copy of seizure memo, three cloth parcels Mark A, B and C and FSL Form all duly sealed with the seal of B7 PS NB Delhi on which he put the FIR No. 72/02 along with his official seal of 1 SHO NBR Delhi and deposited the FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 15 of 23 same in Malkhana through HC Gyan Prakash. PW7 proved the carbon copy of entry as Ex.PW7/B and DD No.1 as Ex.PW7/C. PW7 further deposed that at about 07:00 PM IO/SI Bhoop Singh returned to the PS along with accused. PW7 proved the report U/s 57 of NDPS Act regarding seizure of heroin by SI Bakhtawar Singh as Ex.PW7/D and arrest of accused by SI Bhoop Singh as Ex.PW7/E. During cross examination, PW7 admitted that the information received from SI Bakhtawar Singh was not reduced into writing.
11. The prosecution got examined SI Bakhtawar Singh as PW8 who deposed that on 24.09.2002 at about 09:45 AM he received the secret information regarding supply and sale of heroin. PW8 communicated the said information to SHO Narcotics Branch by producing the Informer before him and same information was communicated by SHO S.P. Kaushik to ACP Narcotics Branch. PW8 constituted the raiding party constituting of HC Roshan Lal, Ct. Ajeet Singh, Ct. Umesh Tyagi and Secret Informer. PW8 further deposed that the government vehicle bearing registration No. DL1CF5342 was being driven by Ct. Tavinder. PW8 further deposed that at about 10:35 AM they reached at main gate of St. Stephen Hospital and vehicle was FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 16 of 23 parked in the taxi stand and driver/Ct. Tavinder was directed to remain present at the spot. PW8 further deposed that he requested 3 - 4 shopkeepers and 3 - 4 TSR drivers to join the raiding party but all of them refused to join the raiding party due to their personal reasons. The raiding party was briefed by PW8. The area of about 50 yds. was cordoned near main gate of St. Stephen Hospital. At about 10:50 AM, the accused Bhagwat Kishore was apprehended at the instance of the secret informer. The accused was apprised about secret information with the raiding party and notice U/s 50 NDPS Act was issued to the accused. The notice was read over and explained to the accused. The accused was also apprised that it is his legal right to get him personally searched in the presence of some gazetted officer and the accused can also take search of any member of raiding party before giving his search to the raiding party but the accused refused to both the things and recorded his refusal in his own handwriting on the notice U/s 50 NDPS Act. PW8 further deposed that he asked the 3
-4 TSR drivers and 3 -4 passersby to join the raiding party but they refused the same stating their reasonable cause. PW8 formally searched the accused. It is further deposed by PW8 that on cursory personal search of the accused - Bhagwat Kishore, one FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 17 of 23 transparent polythene was recovered from right side pocket of pant worn by the accused - Bhagwat Kishore. On checking, the light brown coloured substance was found in that polythene which was found to be heroin on checking by field testing kit. The heroin along with polythene was found to be weighing 260 gms. out of which two samples of 5 - 5 gms. each heroin were taken and tied up with the rubber band. The pullinda was prepared and both the samples were given the nomenclature of Mark A and Mark B. The remaining 250 gms. of heroin was kept back into the same transparent waxy pouch and pullinda was prepared as Mark C. FSL form was filled. SI Bakhtawar Singh applied his seal of B-7-PS-NB Delhi on all the three pullindas, Marked as Mark A, B and C, and also on the FSL form. PW8 further deposed that the seal after use was handed over to Ct. Ajeet and the recovery memo has already been proved as Ex.PW1/C. PW8 proved the tehrir as Ex.PW8/A and was handed over to Ct. Umesh along with all the sealed parcels, FSL Form and carbon copy of seizure memo. PW8 further deposed that SI Bhoop Singh reached at the spot and received the papers from him. PW8 further deposed that IO/SI Bhoop Singh prepared the site plan at the his instance and also recorded the statement of Ct. Ajeet Singh. PW8 further deposed that the accused disclosed that he FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 18 of 23 purchased the heroin from one Jagdish @ Pare at Subzi Mandi. PW8 proved the pointing out memo as Ex.PW8/B. PW8 correctly identified the transparent polythene as Ex.P1 and brown sticky substance as Ex.P2. PW8 also identified the remnants of samples as Ex.P3. During cross examination, PW8 admitted that he has not reduced the information into writing and denied the suggestion that DD No. 8 was written later on. PW8 further admitted that in the site plan Ex.PW8/D1 the position of raiding party is not shown and he has also not given notice to public persons who has refused to join the raiding party. PW8 also admitted that he has not deposited the powder on which the test was conducted with field testing kit.
12. The prosecution got examined SI Bhoop Singh as PW9 who deposed that on 24.09.2002 the investigation of case FIR No. 72/02 was marked to him. He along with Ct. Umesh Tyagi reached at the spot where SI Bakhtawar handed over the custody of the accused, seizure memo and original copy of notice of Section 50 NDPS Act to him. PW9 further deposed that he prepared the site plan at the instance of SI Bakhtawar Singh and recorded statement of Ct. Ajeet and after interrogation he arrested the accused. PW9 further deposed that on the personal search of accused, carbon copy of U/s 50 NDPS Act, Rs.30/-, one wrist watch and one pocket FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 19 of 23 dairy was recovered. PW9 proved the arrest memo of accused - Jagdish @ Pare as Ex.PW9/A and report U/s 57 NDPS Act with respect to accused - Jagdish as Ex.PW9/C.
13. Vide separate statement of accused - Bhagwat Kishore, he admitted the FSL Report dated 13.11.2003 of heroin weighing approximately 2.3 gms. with the result containing diacetylmorphine 0.5% as Ex.P1.
14. PE was thereafter closed.
15. All the incriminating evidence/material was then put to accused which he denied in his statement recorded on 04.09.2012 U/s 313 Cr.P.C submitting the present case to be false. He wished to lead defence evidence, however, accused not examined any defence witness and at his request, the D.E. was closed on 15.12.2012.
16. Final arguments advanced. I have perused the case record carefully.
17. It is observed by the court that all the prosecution witnesses has deposed regarding sequence of date, time and event. The prosecution witnesses has successfully proved the information in form of Ex.PW7/A. The prosecution also proved the notice U/s 50 NDPS Act got issued to the accused and the refusal FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 20 of 23 of getting him search before any gazetted officer in the handwriting of the accused himself. It is also observed that all the prosecution witnesses has deposed in consonance regarding personal search of accused - Bhagwat Kishore by SI Bakhtawar Singh and also the recovery and testing of heroin (diacetylmorphine) in small quantity. The prosecution has also proved the presence of diacetylmorphine with the accused - Bhagwat Kishore which was detected on chemical examination through field testing kit by SI Bakhtawar Singh. In view of admission of FSL Report Ex.P1 by the accused - Bhagwat Kishore, the factum of presence of diacetylmorphine in the substance recovered from the custody of the accused - Bhagwat Kishore is also successfully proved by the prosecution. Apart from recovery of diacetylmorphine the sealing of the samples and remaining powder by SI Bakhtawar Singh by his seal and also counter sealing of same parcels by the seal of SHO, PS Narcotics gives authenticity to seizure of contraband on the day of offence. On one hand, the prosecution has successfully proved the search, recovery, seizure and presence of diacetylmorphine with accused - Bhagwat Kishore whereas in the entire cross examination, accused hovered on non-joining of public witness at the time of recovery of diacetylmorphine from him but this ground of the accused do not FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 21 of 23 find weight when there is refusal by the accused in his own handwriting for getting him searched in the presence of some gazetted officer on the notice U/s 50 NDPS Act itself which is further fortified by not putting any suggestion in cross examination of PW by the accused for use of any coercive method by the police to obtain his written consent on the notice U/s 50 NDPS Act. The accused also wished not to lead any Defence Evidence and his D.E. was closed at his own request. The prosecution has successfully proved the charges framed against the accused - Bhagwat Kishore on 17.08.2004 whereas, on the other hand, the accused failed to give any dent in the story and deposition of prosecution. The prosecution has proved its case beyond reasonable doubt.
18. In view of above observations, accused - Bhagwat Kishore is hereby convicted for the offence U/s 21/61/85 NDPS Act.
Copy of this judgment be given dasti to the convict. Announced in the open Court on this 15th Day of January, 2015 (AJAY KUMAR MALIK) MM(C)-04/Tis Hazari Courts 15.01.2015.
FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 22 of 23 FIR No. 72/02 PS:Narcotics Branch, Kamla Market 15.01.2015 Present : Ld. APP for the State.
Accused - Bhagwat Kishore in person along with Ld. Counsel.
Final arguments advanced.
Vide separate judgment of even date, accused - Bhagwat Kishore is convicted for the offence U/s 21/61/85 NDPS Act.
Separate order on quantum of sentence is also passed today.
File be consigned to Record Room after due completion.
(AJAY KUMAR MALIK) MM (Central)-04/THC 15.01.2015 FIR No. 72/02 State Vs. Bhagwat Kishore Page No. 23 of 23