Delhi District Court
State vs Jagjeet Singh @ Raju on 12 September, 2012
1 of 33
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus Jagjeet Singh @ Raju
S/O Sh Balbir Singh
R/o Vill-Jassiya,
PS Habowal, Distt.
Ludhiana, Punjab
SC No.05A/10
FIR No.399/2009
U/S: 15/25/29 NDPS Act
PS: Badarpur
Computer ID No.:02403R0090392010
ORDER ON SENTENCE
After having convicted the accused for the
offences punishable U/S 15(c), 25 & 29 of the NDPS Act
vide my judgment dated 04.09.2012, arguments have been
heard today as advanced by Sh Inder Kumar, Ld Addl. PP
for the State and Sh S. K. Saxena, Ld defence counsel
for the convict on the point of sentence to be awarded
to the convict. The submissions made by the convict
himself have also been heard.
2. It has been submitted on behalf of the State
that the maximum terms of imprisonments be imposed upon
the convict and he does not deserve any leniency from
this court as he has been found guilty of possessing
and transporting etc a commercial quantity of Poppy
SC No.05A/10 State Vs. Jagjeet Singh @ Raju
2 of 33
Straw.
3. On the other hand, it is submitted on behalf
of the convict that he is only aged about 31 years and
is having the liability to maintain his wife and a
minor son aged about 10 years and a minor daughter aged
about 04 years only, besides his old parents as though
he is having one brother, but he is living separately
from the parents. It is also stated that the convict is
not involved in any other criminal case of any nature
and hence, request has been made for awarding the
minimum sentence to the convict.
4. I have thoughtfully considered the above
submissions being advanced on the point of sentence.
The accused has been held guilty and convicted for
possessing and transporting etc 162 Kgs of chura post
(Poppy Straw) in a vehicle make Mahindra Logan bearing
registration No.PB-10CF-0733 being driven by him and
also being part of a criminal conspiracy to deal in
contraband substances. The above quantity of poppy
straw is a huge quantity of the above contraband
substance as the quantity of 50 Kg of poppy straw has
been prescribed to be a ' commercial quantity ' of the
above contraband substance under the NDPS Act. The
offence punishable U/S 15(c) of the NDPS Act which
have been proved against him carries a punishment of
rigorous imprisonment of not less than 10 years and
SC No.05A/10 State Vs. Jagjeet Singh @ Raju
3 of 33
extendable upto 20 years and also a fine of not less
than rupees one lakh and extendable upto rupees two
lakh. The other offences punishable U/S 25 and 29 of
the NDPS Act proved against him also carry the same
punishment which is prescribed for above main offence
punishable U/S 15(c) of the NDPS Act.
5. Admittedly, as per the story of the
prosecution, the convict was only acting as a carrier
of the contraband substance for some monetary
considerations and he himself is not alleged to be the
kingpin of any drugs syndicate. Hence, keeping in view
the age, family background and all other attending
circumstances, the convict is being awarded the minimum
sentence of rigorous imprisonment for a period of 10
years each and a fine of rupees one lakh each for all
the above offences. In case of non payment of fine he
shall further undergo simple imprisonment for a period
of two months each for the said offences.
6. All the above sentences shall run
concurrently. The period of custody already undergone
by the convict is allowed to be set off in terms of the
provisions of Section 428 Cr.P.C. Fine has not been
paid. Let the convict to undergo the above sentences as
per law.
7. A copy of the judgment and the order on
SC No.05A/10 State Vs. Jagjeet Singh @ Raju
4 of 33
sentence be supplied to the convict free of cost.
8. The case property be also confiscated and
disposed of as per law, after the expiry of the period
of limitation for filing of the appeal and subject to
the outcome of any appeal to be filed against this
judgment and order on sentence or the orders of the
appellate court.
File be consigned to the record room.
Announced in the open
court on 12.09.2012 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC No.05A/10 State Vs. Jagjeet Singh @ Raju
5 of 33
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus Jagjeet Singh @ Raju
S/O Sh Balbir Singh
R/O Vill-Jassiya,
PS Habowal, Distt.
Ludhiana, Punjab
SC No. 05A/10
FIR No. 399/2009
U/S: 15/25/29 NDPS Act
PS: Badarpur
Date of institution : 19.03.2010
Date of reserving judgment : 22.08.2012
Date of pronouncement : 04.09.2012
Computer ID Number :02403R0090392010
J U D G M E N T
The accused was sent to face trial in this court by the SHO PS Badarpur on allegations that on 21.12.2009 HC Rajender Singh, HC Ram Avtar and Ct.Dharampal of the above PS were on duty on a checking picket at the Badarpur Border and they were checking the vehicles coming into Delhi from the side of Haryana at about 07:20 PM when a Mahindra Logan vehicle bearing registration No.PB-10CF-0733 had come from the side of Haryana and was stopped for checking. As soon as the above vehicle had stopped, the driver of the above vehicle as well as the person sitting on the front seat SC No.05A/10 State Vs. Jagjeet Singh @ Raju 6 of 33 by the side of the driver had both tried to run away from the spot, but the driver of the above vehicle was apprehended by the above police officials and his identity was revealed as the accused Jagjeet Singh @ Raju, a resident of village Jassiya, District Ludhiana, Punjab. However, the other person sitting in the vehicle with him had managed to escape.
2. It is alleged that on checking of the above car, it was found that four plastic bags were kept in the dickey of the car and the smell of chura post (Poppy Straw) was emanating from the bags. HC Rajender Singh had conveyed the above information to the PS and the same was recorded in the PS vide DD No.37A Ex.PW11/A. The above DD was assigned to IO/SI Mohinder Singh Dahiya for enquiry and he had reached at the spot, alongwith HC Harender. HC Rajender Singh had produced the accused Jagjeet Singh @ Raju as well as the above vehicle before the IO/SI Mohinder Singh Dahiya and the IO/SI had written the statement Ex.PW3/A of HC Rajender Singh. The IO/SI had also requested 4-5 passersby to join the proceedings after they were told about the above facts, but none had agreed and they all had left the spot without disclosing their particulars and after giving their legitimate excuses. Without wasting any further time, the IO/SI Mohinder Singh Dahiya had served upon the accused a written notice U/S 50 of the NDPS Act Ex.P9 (carbon copy thereof is SC No.05A/10 State Vs. Jagjeet Singh @ Raju 7 of 33 Ex.PW1/C) apprising him that the search of his person and the above car was to be conducted and if he wanted the same could be conducted in the presence of a Magistrate or a Gazetted Officer, but the accused vide his written reply Ex.PW3/B given in his own handwriting on the above carbon copy Ex.PW1/C of the said notice had refused to call the above officers. The search of the members of the police team was also offered to him, but he had also refused for the same.
3. It is further alleged that the IO/SI Mohinder Singh Dahiya had then checked the above four plastic bags found in the dickey of the above car and it was found that they all contained chura post, the plastic bags were numbered as serial Nos.1, 2, 3 and 4 and certain words, as mentioned in the rukka Ex.PW11/C, were found printed on the said bags. The weights of the plastic bags were then taken by the IO/SI and it came to be 40 Kgs, 40.500 Kgs, 41 Kgs and 41.500 kgs respectively. The IO/SI had taken out 2 kg of chura post from each of the above plastic bags as samples and these samples were kept in separate polythenes and were then converted into cloth parcels and sealed with the seals of MSD and given serial No. A1, A2, A3 and A4. The above plastic bags containing remaining chura post were also sealed separately, FSL form was filled up at the spot and the above seal of MSD was also affixed thereon. All the above sealed pullandas of samples and SC No.05A/10 State Vs. Jagjeet Singh @ Raju 8 of 33 remaining case property, alongwith the FSL form, were taken into possession vide seizure memo Ex.PW2/A and seal after use was given to HC Harender.
4. It is also alleged in the charge-sheet that in the meanwhile the SHO/Inspector V.P. Dahiya had also reached there in his official vehicle and the accused, alongwith above parcels, was produced by the IO/SI before him and the SHO had fixed his seals of VPD on all the sealed parcels as well as on the FSL form and had handed over this seal to the IO/SI after use and had left the spot, alongwith all the sealed parcels, FSL form and a copy of the seizure memo.
5. Since the accused was found to have committed offences punishable U/S 15/25/29 of the NDPS Act, the IO/SI had endorsed the rukka Ex.PW11/C on the above statement Ex.PW3/A of HC Rajender Singh and had sent the same to PS through HC Harender and on the basis of the above rukka FIR Ex.PW1/A this case was registered. Further investigation of the case was assigned to SI Ashish Dalal, who had reached at the spot and prepared the site plan Ex.PW10/A of the spot on the pointing out of HC Ram Avtar and had also seized the above said vehicle as well as the RC of the above vehicle Ex.P6 vide memos Ex.PW1/B and Ex.PW3/A respectively. The accused was also arrested by him vide arrest memo Ex.PW3/C, his personal search was conducted vide memo SC No.05A/10 State Vs. Jagjeet Singh @ Raju 9 of 33 Ex.PW3/D and his disclosure statement, Ex.PW3/C was also recorded. In his above disclosure statement, the accused had disclosed the name of his associate, who had absconded from the spot, as one Sunil, who was a resident of his nearby village in District Ludhiana, Punjab, and had also stated, inter-alia, that he was induced in the business of drugs by the above Sunil and he was promised to be paid an amount of Rs.7000/- by the above Sunil after delivery of the above contraband substance in Punjab, which was brought from Gwalior, M.P.
6. Subsequently, an information U/S 57 of the NDPS Act Ex.PW6/B (another copy is Ex.PW10/A1) was also sent by the second IO/SI Ashish Dalal to the ACP concerned, through the SHO. Supplementary disclosure statements Ex.PW10/C & Ex.PW9/B of the accused were also recorded and the name of one Karan, who was stated to be traveling in his separate car ahead of the above vehicle of the accused at the relevant time for ensuring the safe passage, had also figured in his above statements, but none of the above two associates of the accused could be apprehended during the investigation. The given residential addresses of the above two persons were also raided during the investigation, but still they could not be apprehended and it was also revealed during the investigation that the above Sunil was also wanted in another case FIR SC No.05A/10 State Vs. Jagjeet Singh @ Raju 10 of 33 No.257/08 U/S 15 NDPS Act of PS Basti Jodiwal, District Ludhiana, Punjab.
7. The samples of this case were sent to FSL, Rohini for analysis by SI Ashish Dalal and on his transfer from the PS, the investigation of the case was again assigned to SI Mohinder Singh Dahiya and efforts were again made to apprehend the above two absconding accused, but with no result. In the FSL report Ex.PW11/D, which is per-se admissible in evidence U/S 293 Cr.P.C., received subsequently, the samples Ex.A1 to Ex.A4 were all opined to be containing Morphine, Codeine, Thebaine, Papaverin, Narcotine, Meconic Acid & Porphyroxine, which are the main constituents of Poppy Plant (Papaver Somniferum). Hence, a charge-sheet for commission of the offences punishable U/S 15/25/29 of the NDPS Act was filed against the accused Jagjeet Singh @ Raju, while the other two accused Sunil and Karan were still absconding. However, subsequently during the trial of this case the above two accused were declared Proclaimed Offenders by this court vide order dated 21.12.2010 and 24.01.2011 respectively.
8. The charge-sheet was filed in this Court on 19.03.2010 and cognizance thereof was taken on the same day. A prima facie case for commission of the offences punishable U/S 15/25/29 of the NDPS Act was also found to be made out against the accused and charges for the SC No.05A/10 State Vs. Jagjeet Singh @ Raju 11 of 33 said offences were also framed against him by this court on 04.05.2010.
9. The prosecution in support of its case has examined on record, total 12 witnesses. However, due to some mistake or inadvertence two witnesses namely HC Rajender and HC Ram Avtar have been given the same serial number as PW3. To avoid any confusion in the discussion, HC Ram Avtar has been re-numbered as PW3A today and the documents proved by him are also being renumbered accordingly. The names and the purposes of examination of all the witnesses is being stated hereinbelow:-
10. PW1 HC Jagdish is the duty officer of this case and he had recorded the FIR Ex.PW1/A and had also made an endorsement in this regard on the original rukka and one corresponding DD No.41A regarding the registration of the case.
11. PW3 HC Rajender Singh, PW3A HC Ram Avtar and PW4 Ct.Dharampal all are the members of the above raiding police team & were on duty at the above picket and had apprehended the accused with the above contraband substance being carried in the plastic bags kept in the dickey of the above vehicle. They all have broadly deposed on the above lines of the prosecution story and also regarding the various documents prepared SC No.05A/10 State Vs. Jagjeet Singh @ Raju 12 of 33 at the spot in their presence. They all have identified the accused as well as the case property consisting of the remnants of the above four samples Ex.A1 to Ex.A4 sent for testing to FSL, as Ex.P1 to Ex.P4, the remaining Poppy Straw of the above four plastic bags as Ex.P5 to Ex.P8. PW3 HC Rajender Singh and PW4 Ct.Dharampal have also identified the notice U/S 50 of the NDPS Act recovered in the personal search of the accused as Ex.P9 and PW3 has further identified the above Mahindra Logan car as Ex.P10. (It is stated here that the three documents, i.e. the seizure memo of the RC of above vehicle, notice U/S 52 of the NDPS Act given to accused and the disclosure statement of accused exhibited as Ex.PW3/A, Ex.PW3/B and Ex.PW3/C respectively during the statement of PW3A HC Ram Avtar (re-numbered as PW3A instead of PW3) have been exhibited/re-numbered as PW3A/A, Ex.PW3A/B & Ex.PW3A/C respectively to avoid any confusion.)
12. PW5 Sh Harbaksh Singh is the husband of the registered owner of the above vehicle Smt.Ranjit Kaur and he has identified the accused as a driver of the above vehicle on the relevant date. He has also stated that the above vehicle was brought to Delhi by the accused from Punjab on the abovesaid date on the pretext that he had to bring some of his relatives from the IGI Airport and when he did not return back on the next day, this witness had enquired from the accused SC No.05A/10 State Vs. Jagjeet Singh @ Raju 13 of 33 for the reasons of the delay and the accused had replied that the flight was delayed. However, subsequently this witness had come to know the involvement of the accused and of his vehicle in this case. He had also got the vehicle released on superdari vide superdaginama Ex.PW5/A on the basis of Power of Attorney Ex.PW5/B given by his wife and has further identified the RC Ex.PA of the above vehicle Ex.P10 itself.
13. PW6 Sh V. S. Pundir was posted as ACP Sarita Vihar on 22.12.2010 when the above information U/S 57 of the NDPS Act Ex.PW6/A was received in his office and was seen and endorsed by him. The same was also subsequently entered in the Dak Register of his office vide entry Ex.PW6/B.
14. PW7 Sh V. P. Dahiya is the SHO of PS Badapur at the relevant time and he has also deposed on the above lines of the prosecution story, regarding his arrival at the spot, entrustment of the above parcels and documents to him and their deposition in the Malkahana.
15. PW8 HC Amit Kumar was the MHC(M) of the above PS at that time and he has deposed regarding the deposit of the case property etc. of this case in the malkhana and has proved on record the relevant entry of SC No.05A/10 State Vs. Jagjeet Singh @ Raju 14 of 33 the register No.19 as Ex.PW8/A and of RC No.05/21, vide which the sample parcels were sent to FSL, as Ex.PW8/B and copy of the acknowledgment receipt of the FSL as Ex.PW8/C.
16. PW9 Ct.Prembir had taken the above sealed sample parcels from the police station malkhana to FSL, Rohini, Delhi on 14.01.2010 and had deposited the same there vide receipt Ex.PW8/C (this document is inadvertently exhibited again in his statement as Ex.PW9/C). Prior to that on 26.12.2009 also he had joined the investigation of this case with the IO/SI Ashish Dalal when the accused, in terms of the disclosures made by him, was taken to Bharatpur, Rajasthan and the pointing out memo Ex.PW9/A of an office at 253, Rajender Nagar, Bharatpur, Rajasthan was prepared and he had also witnessed the supplementary disclosure statements Ex.PW9/B and Ex.PW10/C of the accused.
17. PW10 SI Ashish Dalal is the second IO of this case, who was assigned the investigation after registration of the FIR. He has also deposed on the above lines of the prosecution story regarding the investigation done and the documents prepared by him at the spot and also subsequently. He has also identified the accused as well as the personal search articles of the accused, including the notice U/S 50 of the NDPS SC No.05A/10 State Vs. Jagjeet Singh @ Raju 15 of 33 Act recovered from him.
18. PW11 SI Mohinder Singh Dahiya is the initial IO of this case and he as well as PW2 HC Harender had both reached at the spot on receipt of DD No.37A Ex.PW11/A. They both have also broadly deposed on the above lines of the prosecution story and have identified the accused and the above exhibits while deposing about the investigation done and documents prepared at the spot. (During the statement of PW2 HC Harender the seizure memo of above case property and the carbon copy of the notice U/S 50 of the NDPS Act were inadvertently exhibited as Ex.PW1/B and Ex.PW1/C respectively instead of Ex.PW2/B and Ex.PW2/C, but since no other documents have been exhibited as Ex.PW1/B and Ex.PW1/C in statement of PW1, these documents will be read as Ex.PW1/B and Ex.PW1/C only).
19. After the conclusion of the prosecution evidence, the statement of the accused U/S 313 Cr.P.C. was recorded and all the incriminating evidence brought on record by the prosecution was put to the accused in his above statement and the same was denied by him to be incorrect. He has claimed himself to be innocent and to have been falsely implicated in this case. He has stated that he was an employee of PW5 Sh Harbaksh Singh and he was called by him in PS Badarpur on 21-22.12.2009 as his car was seized by the police SC No.05A/10 State Vs. Jagjeet Singh @ Raju 16 of 33 official of the above PS.
20. He has also stated that when he reached the PS, PW5 had left the PS giving instructions to him for getting the above car released from the court and for bringing it to Ludhiana and he had remained in the PS as he was assured by the police officials that the vehicle would be released from the court on the next day. On the next day, the police officials had got signed some documents from him on the pretext of release of the above vehicle and he was forcibly detained there and taken on police remand. He has also claimed that nothing was recovered from his possession and he was not aware about the contents of the above documents got signed from him.
21. I have heard the arguments advanced by Sh Inder Kumar, Ld Addl. PP for the State and Sh S.K. Saxena, Ld defence counsel for the accused and have also appreciated the evidence led on record and the other record of the case.
22. The first argument of Ld defence counsel is that from the evidence led by the prosecution on record it does not appear that the notice U/S 50 of the NDPS Act given to the accused was because it was a legal right of the accused to be searched in the presence of a Magistrate or a Gazetted Officer and rather it SC No.05A/10 State Vs. Jagjeet Singh @ Raju 17 of 33 appears that service of the same was merely a formality. It is also argued that the above notice was admittedly given after the dickey of the above vehicle has already been opened and the police officials had seen that the above bags were containing the chura post.
23. In this regard, it is observed that it is a case of chance recovery of the above contraband substance and since there was no prior information available with the above police officials that the accused would be arriving there with any contraband substance, the provisions of Section 50 of the NDPS Act were not required to be complied with by that time as this Section comes into picture only when a police official gets the knowledge of the possible recovery of some contraband substance and he has to conduct a search for the same. Moreover, though the above plastic bags containing the above contraband substance were seen by the police officials on opening the dickey of the above car, but once they had found that smell of chura post was coming from the above bags, they had resorted to the provisions of Section 50 of the NDPS Act and had served a notice U/S 50 of the NDPS Act upon the accused before actually opening the above bags and conducting further search. Even otherwise, the above provisions are not applicable in this case as the recovery of the contraband substance has not been SC No.05A/10 State Vs. Jagjeet Singh @ Raju 18 of 33 effected from the ' p erson ' of accused, but has been effected from a vehicle. Reference in this regard can be made to the cases of State of H.P. Vs Pawan Kumar :
2005 (4) SCC 350, Madan Lal Vs State of H.P. : 2003 Crl.L.J 3868 and Ajmer Singh Vs State of Haryana :2010 (2) SCR 785 (Crl. Appeal No. 436/09). Hence, even otherwise, any alleged discrepancy in the said notice is not bound to adversely affect the case of the prosecution.
24. The next contention of Ld defence counsel is that there is no public and independent witness joined by the police officials prior to or at the time of recovery of the above contraband substance and hence, the depositions made only by the police officials cannot be believed and the accused deserves to be acquitted on this ground only. However, it is well settled now that though the joining of public witnesses is required in such cases, but it is not a hard and fast rule that public witnesses should be joined in each and every case. It is a fact of common knowledge that public witnesses are always reluctant to join the police investigations because of various reasons, including the harassment and inconvenience caused to them in attending the court proceedings and long drawn litigations etc. Hence, simply because there is no public witness joined in the police investigations, the testimonies of the official witnesses cannot be SC No.05A/10 State Vs. Jagjeet Singh @ Raju 19 of 33 discarded as they are also competent witnesses. Moreover, there are specific depositions made by PW3, PW3A, PW4 as well as the IO/PW11 that some passers-by were requested to join the investigation, but they had refused to join the investigation and hence it cannot be said that there were no efforts on the part of the IO/PW11 to join public or independent witnesses.
25. Reference in this regard can be made to a judgment of our own High Court in case Union of India Vs Victor Namdi Okpo:2010 (4) JCC (Narcotics) 188 wherein their Lordships had held that the non- joining of public witnesses by the prosecution is not fatal. Hence, the depositions of the police witnesses only cannot be thrown away and disbelieved for merely the non joining of the public witnesses.
26. With regard to the non-joining of public witness reference can also be made to the judgment of the Hon' b le Supreme Court in case Ajmer Singh Vs State of Haryana: 2010(2) SCR 785 = (2010) 3 Supreme Court Cases 746 wherein the following observations were made:-
"19. The learned counsel for the appellant has submitted that the evidence of the official witnesses cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned counsel. It is clear from the testimony of the prosecution witnesses PW3, Paramjit Singh Ahalwat, DSP, Pehowa; PW4, Raja Ram, Head Constable and PW5, Maya Ram, which is on SC No.05A/10 State Vs. Jagjeet Singh @ Raju 20 of 33 record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced.
20. We cannot forget that it may not be possible to find independent witness at all place, at all time. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence. "
27. The next argument of Ld defence counsel is that the prosecution has not been able to prove the complete chain of its evidence as it is admitted on record during the statement of PW8/MHC(M) HC Amit Kumar that the relevant entry Ex.PW8/A of the register No.19 regarding deposit of the sealed parcels of the case property and samples in the malkhana does not contain a mention of deposit of the FSL form in the malkhana, alongwith the abovesaid parcels. It is his argument that in view of above admission made by PW8/MHC(M) the accused is entitled to be given benefit of doubt as the factum of deposit of the FSL form in the malkhana or SC No.05A/10 State Vs. Jagjeet Singh @ Raju 21 of 33 sending the same to FSL with the sealed parcels has not been proved on record.
28. It is a matter of common practice followed by almost all MHC(M)s of different police stations in Delhi that at the time of deposit of the case property in malkhana they only reproduce the contents of the seizure memo in register No.19 instead of making an entry only of the factum of deposit of the case property in malkhana. In view of above, it is certain that the factum of deposit of the FSL form in malkhana is not going to be recorded specifically in the said register. However, simply because it is not mentioned so in the above register, it does not mean that the same was not deposited there or was not sent to FSL with the sample parcels as for that the oral evidence led by the prosecution on record is also required to be appreciated.
29. It has been deposed by all the concerned witnesses that the FSL form was filled up at the spot and handed over by the IO/PW11 to the SHO/PW7 at the spot, alongwith the sample parcels and a copy of the seizure memo, and the same was further handed over by the SHO to the MHC(M)/PW8. It is also deposed by PW8/ MHC(M) as well as PW9 Ct.Prembir that the same was also handed over by PW8 to PW9 and deposited in the FSL with the sample parcels. Hence, the consistent and SC No.05A/10 State Vs. Jagjeet Singh @ Raju 22 of 33 corroborative depositions made by the above witnesses on this aspect cannot be disbelieved and no inference of any tampering of the parcels of case property or the samples of this case at any stage is also visible or can be inferred from the record. Therefore, this argument of Ld defence counsel is also found to be without any merits.
30. Next challenge of Ld defence counsel to the prosecution story is on the ground that no memo of handing over of the seal of the IO or of the SHO to any other police official was prepared or brought on record and in the absence of the same, the possibility of tampering with the above parcels cannot be ruled out. In this regard also it is observed that there is no mandatory requirement under the NDPS Act or the Rules framed thereunder that any such memo is required to be prepared in this regard. There are consistent and corroborative depositions made by the witnesses on record that the seal of ' M SD ' of the IO/PW11 was handed over to PW2 HC Harender and the seal of ' V PD ' of the SHO/PW7 was handed over by the SHO to the IO/PW11 after use at the spot and it is also on record that the above seals were returned back only on the next day, i.e. after the deposit of the above parcels in the malkhana. Hence, in view of the above, and further in view of the fact that no such tampering with the above parcels of case property and samples can be SC No.05A/10 State Vs. Jagjeet Singh @ Raju 23 of 33 inferred from the record, this argument raised by Ld defence counsel also does not hold any ground.
31. Another argument of Ld defence counsel is that the arrest memo and personal search memo Ex.PW3/C and Ex.PW3/D respectively of the accused are not in the handwriting of the second IO/PW10 SI Ashish Dalal and this fact has been admitted by PW10 himself during his cross-examination and PW10 was even not able to tell as to in whose handwriting the above documents were prepared at the spot. It is also stated that PW10 was also not able to remember as to in whose handwriting most of the documents, including the statements of witnesses U/S 161 Cr.P.C., were prepared at the spot during the investigation conducted by him and he had even not prepared the seizure memo of the car Ex.PW1/B and he could only identify that the statements of Ct.Dharampal and Inspector V. P. Dahiya were written by him in his own handwriting but he was not able to identify the handwriting of statements of other witnesses. It is his argument that since PW10 was not been able to identify the handwriting of most of the documents and all the statements recorded U/S 161 Cr.P.C., it is doubtful that he was involved in any actual investigation of this case.
32. I am of the view that the above argument of Ld defence counsel also cannot be accepted as it is no SC No.05A/10 State Vs. Jagjeet Singh @ Raju 24 of 33 where mandatorily required or prescribed that the entire writing work has to be conducted in the handwriting of the investigating officer himself. PW10 has identified some of the documents in his own handwriting and even the above seizure memo, arrest memo and personal search memo etc of the accused are though not in his handwriting, but he has stated that the same have been attested by him. Hence, simply because some of the documents are not in his handwriting but in the handwriting of any other member of the police team, though not identified by him, no inference or presumption can be drawn or taken therefrom that the same are fake documents or were prepared subsequently as had there been any such intention, it would have been more easier for the above IO to prepare all the documents in one go in his own handwriting while subsequently sitting at the police station.
33. Besides the above, the Ld defence counsel has also pointed out various contradictions in the statements of the prosecution witnesses to support his argument for the acquittal of the accused giving him the benefit of doubt. It has been pointed out that there are some contradictions regarding the nature of the scale used in weighing of the contraband substance; whether the accused had made any attempt to escape from the spot or whether he was apprehended after a chase;
SC No.05A/10 State Vs. Jagjeet Singh @ Raju 25 of 33 the timings of arrival of the IO/PW11 with PW2, and the SHO at the spot; and further the timing of the leaving of the spot finally by the members of the raiding team and the second IO. However, it is observed that the above contradictions being pointed out by Ld defence counsel are not found to be material in nature and are only of minor type which can easily be ignored as the same are bound to occur with the lapse of time or the fading human memory.
34. Except PW4 Ct.Dharampal who had initially stated the scale to be a ' Tarazu' and then to be ' standing type scale' with needle, all the other members of the police team involved in the spot investigation have stated that the scale used by the IO/PW11 in weighing the contraband substance was a spring actuated scale which is used in weighing the LPG cylinders etc. Though PW2 and PW3 on their own have not deposed that the accused had made any attempt to escape or he was apprehended after giving a chase, but this fact was also not got clarified from them by Ld defence counsel during their cross-examinations. It is the case of the prosecution from the beginning itself that both the occupants of the above vehicle had tried to escape from the spot and though the accused was apprehended, but the other occupant of the vehicle, namely the above Sunil, had managed to escape from the spot. The depositions of PW3, PW3A, PW4 and PW11/IO SC No.05A/10 State Vs. Jagjeet Singh @ Raju 26 of 33 clearly suggest that there was an attempt on the part of the accused, who was driving the above vehicle to run away from the spot and he was apprehended after giving some chase and hence, these minor contradictions in the statements of the prosecution witnesses cannot be given much weight.
35. All the prosecution witnesses have stated the time of the arrival of the IO/PW11 at the spot to be around 07.30/07.35/07.45PM and the time of arrival of the SHO to be around 09.00 and 09.30PM and keeping in view the different human memories and the day-to-day involvement of the above witnesses in police investigations, these minor variations in the different timings connected with the investigations cannot be considered fatal for the prosecution case. It has also come on the record during the evidence that the spot of investigation was finally left by the members of the raiding team around midnight and whether it was sometime before or after midnight becomes immaterial. Further, though, it has also been argued that none of the above witnesses has been able to tell as to how the above vehicle used in the transportation of the above contraband substance was taken from the spot to the police station, but even this fact is not found to be material as the vehicle was apprehended at the spot, seized in this case and was also subsequently released on superdari from the court and hence, the involvement SC No.05A/10 State Vs. Jagjeet Singh @ Raju 27 of 33 of the above vehicle in this case stands duly proved on record, though subsequently it was found to be without any criminal knowledge or intent on the part of its registered owner.
36. PW3 HC Rajender Singh, PW3A HC Ram Avtar and PW4 Ct.Dharampal have all corroborated each other with regard to the fact that the accused was apprehended at the above picket on Faridabad-Delhi border while he was found driving the above vehicle bearing registration No.PB-10CF-0733 and four plastic bags containing chura post were found kept in the dickey of the above vehicle. They have further deposed that on being informed at the police station, the IO/PW11 SI Mohinder Singh Dahiya and PW2 HC Harender had both reached at the spot and all the above witnesses have made further consistent and corroborative depositions regarding the search of the above plastic bags, recovery of the above quantities of chura post from the said bags and the sealing and sampling etc of the parcels of samples and all the remaining chura post, conducted by the IO/PW11 at the spot. The oral depositions of the above witnesses on the above aspects are found to be duly corroborated by the contents of above documents prepared at the spot regarding the seizure of the above parcels, vehicle and RC etc. They all have also identified the accused, as well as above case property and the documents, as stated above.
SC No.05A/10 State Vs. Jagjeet Singh @ Raju 28 of 33
37. Though, during the cross-examination of PW3A HC Ram Avtar it has come on record that the weight of contraband substance of the second bag was revealed as 41.500 Kgs instead of 40.500 Kgs in his statement U/S 161 Cr.P.C., but he has also clarified that the same was mentioned as such due to some clerical mistake. The improvement in his statement on the point of handing over of the seal of the IO to PW2 is also not found to be material. It is also pointed out by Ld defence counsel that PW10/IO in his cross-examination has stated at one point of time that he had not seen the case property or samples at the spot as the pullandas of the same had already been taken by the SHO, but again he went on to state that at that time the SHO was leaving with the pullandas, but the above depositions of PW10 cannot be given much weight, in the light of the depositions of the other witnesses on this aspect, as the same are also attributable to some loss of memory on his part.
38. PW5 Sh Harbaksh Singh is the husband of the registered owner of the above vehicle and his statement clearly establishes on record that the accused Jagjeet Singh @ Raju was in possession and in exclusive control of the above vehicle at the relevant time. The accused was employed as a driver under PW5 and he had brought the above vehicle to Delhi on the pretext of bringing SC No.05A/10 State Vs. Jagjeet Singh @ Raju 29 of 33 some of his relatives from IGI Airport. There is no reason on the part of PW5 to falsely depose against accused or to implicate him in this case and except some vague suggestions given to this witness, no plausible reasons have also been brought on record from the side of the accused for his such false implication by this witness.
39. Further, the accused is a resident of District Ludhiana, Punjab and he has been apprehended in Delhi while he was transporting the above contraband substance in the above vehicle and importing into the same in Delhi from Faridabad, which is in the State of Haryana. Though, in the disclosure statement of the accused it had come on record that the above contraband substance was brought from Gwalior, Madhya Pradesh, but this fact could not be substantiated during the investigation. However, as stated above, the evidence led on record proves that the above contraband substance was being imported into the State of Delhi from the State of Haryana as the above vehicle had entered into Delhi from Faridabad side, which falls within the State of Haryana.
40. There is no enmity even alleged between the above officials of the Delhi Police and the accused, which could have furnished a ground for the false implication of the accused in this case. Though, during SC No.05A/10 State Vs. Jagjeet Singh @ Raju 30 of 33 the course of suggestions given to PW5 Sh Harbaksh Singh, it has been suggested to him that it is the above witness himself who was in fact apprehended with the above contraband substance being transported in his abovesaid car and the accused was implicated in this case falsely when he was called in the police station by PW5 later on, but the above suggestions had not been substantiated by any material or evidence on record. Though, further during the course of recording of his statement U/S 313 Cr.P.C. also the accused had made similar submissions, but it is found that the above defence of the accused is only an afterthought as the above suggestions given to PW5 are not found to have been put or given to the four material witnesses of the prosecution, i.e. PW2, PW3, PW3A and PW4, who already stood examined on record by that time.
41. It is also observed that the above incident is dated 21.12.2009 and immediately after his false implication in this case or at any time subsequently the accused or his family members had not made any complaint or representation before any authority to allege his false implication in this case by the Delhi Police at the instance of PW5 Sh Harbaksh Singh. No defence evidence by the accused has also been led on record to substantiate his above claim of false implication. It cannot be ignored that the recovery of chura post (Poppy Straw) weighing 162 Kgs in total has SC No.05A/10 State Vs. Jagjeet Singh @ Raju 31 of 33 been effected from the accused, which is a huge quantity of the above contraband substance as the quantity of 50 Kg of poppy straw has been prescribed to be a ' c ommercial quantity' of the above contraband substance. Since the above quantity in itself is a very huge quantity, it rules out the possibility of plantation thereof upon the accused and that too without there being any enmity between him and the above police officials.
42. In the FSL report dated 17.03.2010 Ex.PW11/D, which is per-se admissible in evidence under the provisions of Section 293 Cr. P.C. all the four samples of the above contraband substance were found to be containing all the main constituents of Poppy Plant (Papaver Somniferum).
43. The possession of the above contraband substance by the above accused and the transportation thereof by him in the above vehicle is also successfully proved on record and the above further amounts to Inter-State import of the above quantity of the above contraband substance in the State of Delhi. The possession, transportation and Inter-State import and export etc of the above contraband substance is punishable U/S 15(c) of the NDPS Act, the charge for which offence is held proved against the accused. Since it has also been proved on record that the SC No.05A/10 State Vs. Jagjeet Singh @ Raju 32 of 33 accused being a driver of the above vehicle was in exclusive control and possession of the said vehicle, the charge for the offence punishable U/S 25 of the abovesaid Act framed against accused also stands proved against him on record. As far as the charge for the offence punishable U/S 29 of the NDPS Act pertaining to the abetement or being a part of the criminal conspiracy to commit the above offences is concerned, it is observed that no further recovery of any contraband substance could be effected in pursuance to the above disclosure statements made by the above accused and further the above two persons Sunil and Karan named by the accused could also not be apprehended in this case.
44. However, still there are consistent and corroborative depositions made by PW2, PW3 and PW3A that at the time of apprehension of the accused in this case, the above Sunil was also traveling in the above vehicle and he had managed to escape from the spot. The fact that the above Sunil had absconded when the above vehicle was stopped by the police and further that even the accused had made an attempt to escape, is a clear indication of the existence of a criminal conspiracy between the accused and the above Sunil for transporting and importing into the State of Delhi the above contraband substance. Hence, even the charge for the offence punishable U/S 29 of the NDPS Act stands SC No.05A/10 State Vs. Jagjeet Singh @ Raju 33 of 33 proved against him on record.
45. In view of above discussion, the accused is being held guilty and convicted for the offence under Sections 15(c), 25 & 29 of the NDPS Act. Let he be now heard on the point of sentence.
Announced in the open
court on 04.09.2012 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC No.05A/10 State Vs. Jagjeet Singh @ Raju