Delhi District Court
In View Of The Above Discussion ... vs . Bal on 1 May, 2012
IN THE COURT OF SH. NARINDER KUMAR
SPECIAL JUDGE, NDPS (CENTRAL); DELHI
SC No. 66/2009
FIR No.289/2009
PS New Delhi Railway Station
U/s 20 Narcotics Drugs Psychotropic Substances Act.
In the matter of:
State
Versus
1. Ashwani Kumar
S/o Sh. Anoop Singh
R/o 5/20, Gali No. 5,
Madhu Vihar, Solanki Market,
Dwarka, Delhi.
2. Kalia Behra
S/o Sh. Horo Behra,
R/o V & PO, Chuduwara,
District Cuttak, Orissa. ......Accused persons.
Date of Institution: 04.11.2009
Date of Judgment: 01.05.2012
J U D G M E N T
Ashwani Kumar and Kalia Behra have been facing trial under Section 20 of Narcotics Drugs and Psychotropic Substances Act FIR No. 289/09 1 (hereinafter referred to as the 'Act').
2. Accusation levelled by the prosecution is that on 10.09.2009 at about 12.50 pm both of them and another (Raghu Mori Nayak Proclaimed offender) when apprehended at Delhi side end on platform no. 6 & 7, New Delhi Railway Station were found in possession of Ganja each.
3. In brief, it is case of prosecution that on 10.09.2009 SI Anuj Nautiyal while patrolling reached Central bridge, New Delhi Railway Station (NDRS) and met HC S Tyagrajan and Ct. Vineet and Ct. Nemi Prasad, at about 12:50 pm. While all of them were patrolling, both accused person and their coaccused Raghu Mori Nayak were seeing coming from the side of Delhi end. On seeing the police party, they started moving fast, but they were apprehended by the police party.
4. All the accused persons were carrying a plastic katta on their shoulders. Police party inquired from them about the contents of the bags. But none of them disclosed about the same. The bags were then opened and found containing Ganja. SI Anuj Nautiyal informed the SHO on wireless and in this regard DD entry was recorded. He sent Ct. Vineet to police station to bring scale and weights. FIR No. 289/09 2
5. SI Anuj Nautiyal apprised accused persons of their legal right of being searched in presence of Gazetted Officer or Magistrate. Notice under Section 50 of NDPS Act was served upon each one of them. The accused persons opted not to be subjected to search in presence of Gazetted Officer or Magistrate, and rather expressed their faith in police. Thereupon, SI initiated further proceedings.
6. It is the case of the prosecution that accused Ashwani Kumar was found in possession of 21 kgs of Ganja and accused Kalia Behra was also found in possession of 12 kgs of Ganja.
7. It is case of the prosecution that by way of two samples, each of the quantity of 1 kg was drawn from the Ganja recovered from each accused. These six parcels were sealed by SI Anil Nautiyal with his seal. The bags containing the residue were also similarly sealed. Forms FSL were filled and impression of the seal use was affixed on it. After use, the seal was handed over to Ct. Vineet.
8. Rukka was prepared and handed over to Ct. Nemi Prasad. Constable was also entrusted with the sealed parcels, FSL form and copy of recovery memo.
9. On reaching police station, Ct. Nemi Prasad got the case FIR No. 289/09 3 registered. He also produced the case property, FSL Form and copy of recovery memo before the SHO. The SHO in his turn affixed his seals on the case property and also affixed impression of seal on FSL Form. He recorded particulars of the case on the case property.
10. After registration of the case, investigation was assigned to SI Jagmal Singh. SI reached the spot and conducted investigation. All the accused persons were arrested and subjected to personal search. On return to the police station, accused persons were produced before Inspector Naresh Kumar, SHO.
11. Report under Section 57 of the Act was sent to the office of ACP through SHO on the same day. Sealed sample parcels were sent to FSL where their contents were analyzed.
12. On completion of investigation, challan was put in court. Copies of documents relied upon by the prosecution were supplied to the accused persons free of cost.
Charge
13. Prima facie case having been made out, charge for an offence U/s 20 of Act was framed against all the three accused persons on 23.03.2010, to which they pleaded not guilty.
It may mentioned herein that Raghu Mori Nayak accused absconded during trial and ultimately he was declared proclaimed FIR No. 289/09 4 offender.
Prosecution was called upon to lead evidence. Prosecution Evidence
14. In order to prove its case prosecution examined, following 11 witnesses: PW1 HC Sunder Singh, the To prove recording of FIR Ex PW1/A. concerned Duty Officer PW2 HC Ajit Kumar To prove communication of information pertaining to this case, to the ACP under Section 57 of the Act.
PW3 HC Thyagrajan Witness to the arrest of accused persons and recoveries.
PW4 Ct. Vineet Kumar Witness to the arrest of accused persons and recoveries.
PW5 Ct. Nemi Prasad Witness to the arrest of accused persons and recoveries.
PW6 Ct. Shambu Prasad To prove deposit of sealed parcels at FSL on 07.10.2009.
PW7 Inspector Naresh Kumar, To prove communication of information concerned SHO about arrest of accused persons and recoveries from them, sealing of the case property at the police station and its deposit with MHC(M) with FSL forms and copies of recovery memos.
PW8 SI Jagmal Singh Who subsequently took over investigation of this case.
PW9 HC Sunil Kumar,MHC(M) To prove DD entry no. 19A made by Inspector Naresh Kumar on 10.09.2009 PW10 SI Anuj Nautiyal Who arrest the accused persons and made recoveries. Investigation officer of the case. PW11 HC Davis V. J. Who dealt with the case property FIR No. 289/09 5 Statement of Accused
15. When examined U/s 313 Cr.P.C. the accused persons denied all incriminating circumstances appearing in evidence against them and claimed false implication.
The plea of accused Ashwani Kumar is as under: "I saw Kalia Behra and Raghu Mori in the lock up of the police station......The case property has been planted.....I saw SI Jagmal for the first time in court.... I have been falsely implicated in this case... I was picked up the police from my house on 09.09.09 and then falsely implicated in this case..."
The plea of accused Kalia Behra is as under: "I do not know anything about my coaccused. I was picked up the police from in front of Railway station and then falsely implicated in this case." Despite opportunity, accused persons opted not to lead any evidence in defence.
Arguments heard. File perused.
Discussion
16. As per prosecution version, this is a case of chance recovery. Accused is alleged to have been apprehended by the police party consisting of PW10 SI Anuj Nautiyal, PW3 S. Thayagrajan, PW4 Ct. Vineet Kumar and PW5 Ct. Nemi Prasad. According to PW10 SI Anuj Nautiyal, he while on patrolling duty, met above mentioned FIR No. 289/09 6 three PWs at Central bridge of New Delhi Railway Station. According to PW3, PW4 & PW5, they were also on patrolling duty and they met SI Anuj Nautiyal.
Ex PW1/DA is copy of DD No. 15A recorded at police station New Delhi Railway Station regarding departure of SI Anuj Nautiyal from the police station in connection with patrolling in the area. This goes to show that SI Anuj Nautiyal was actually in the area, while on patrol duty, and the same lends corroboration to the prosecution version of his having met the three PWsPW3, 4 & 5, who were also on patrolling in the area. It is in the cross examination of PW4 that he had left the police station in connection with patrolling at 9.30 am. Other two PWs PW5 Ct. Nemi Prasad and PW3 HC S. Thayagrajan have made statements in consonance with each other by giving the distance of the spot from the police station and the time which they took in covering it while on foot.
Learned defence counsel has submitted that PW3 HC S. Thyagrajan was initially given up by the prosecution but ultimately examined, without seeking permission of the Court.
File reveals that HC S. Thyagrajan initially appeared in the witness box as PW3 on 26.05.2010. At that time, learned Addl. PP thought as if this witness was to be examined only as MHC(M). But FIR No. 289/09 7 when he realized that HC Thyagrajan was one of the witnesses to the arrest and recovery, he was examined on 29.07.2010. When so examined HC Thyagrajan fully supported the case of prosecution. Therefore, although the witness was dropped on 26.05.2010 under the aforesaid impression, his examination on 29.07.2010 does not adversely affect the case of prosecution.
Further according to these PWs all of them reached platform no. 67. At that time, they saw three boys coming from the side of Delhi end. They were having one plastic katta (bags) each on their shoulders. On seeing them, three boys started moving in fast. The PWs have specifically name present accused Ashwani, Kalia Behra and Raghu Naik as the persons so apprehended by them. It is also in the statements of PWs that the bags were taken into possession and accused persons were inquired about their contents but they did not disclose anything about its contents. Further according to PWs, on opening the three bags, it was found that same were containing Ganja.
According to PW10, SI Anuj Nautiyal, he sent Ct. Vineet Kumar to the police station to bring scale and weights. He also informed the SHO on wireless.
FIR No. 289/09 8
It is in the statement of PW3 HC S. Thyagrajan that Ct. Vineet Kumar had brought scale and weights of 10 kgs, 5 kgs, 2 kgs, 1 kgs and 500 grams.
Statement of Ct. Vineet has gone unchallenged for want of cross examination on behalf of accused Kalia Behra.
All the witnesses to the arrest and recovery have unequivocally stated that Ashwani accused was apprehended by Ct. Vineet Kumar, Kali Behra accused was apprehended by HC S. Thyagrajan and accused Raghu Mori Nayak by Ct. Nemi Prasad, when they were coming out of the platform.
In the cross examination, it was suggested on behalf of Ashwani Kumar accused to the prosecution witnesses that he was picked up from outside a hotel in Paharganj area. However, accused has not led any evidence in support of this plea. Even there is no material in the prosecution evidence to prove this plea.
On cross examination of prosecution witnesses on behalf of Kalia Behra accused, it was suggested that SI Anuj Nautiyal demanded money from them, but when accused expressed their inability to pay money, they were falsely implicated. This suggestion was denied by PW3 HC. S. Thyagrajan.
From the trend of cross examination, this Court finds that self contradictory plea has been put forth regarding the place from where FIR No. 289/09 9 Ashwani accused was apprehended.
Inspector Naresh Kumar, the concerned SHO while appearing in Court as PW7 has supported this fact by stated that on 10.09.2009 at about 1.30 pm while he was present at his office, SI Anuj Nautiyal informed him having apprehended three persons carrying plastic bags containing Ganja at platform no. 67, New Delhi Railway Station towards Sadar Bazar side. According to the Inspector, he was requested to reach the spot but he expressed his inability on account of other official work. He then directed SI Anuj Nautiyal to proceed further. It is also available on the statement of PW7 that in this regard he recorded DD No. 19A. This entry lends corroboration to the prosecution version about arrest of accused and recoveries on the given date, time and place.
Ex PW7/A is copy of DD no. 19 dated 10.09.2009, recorded at 1.32 pm regarding information communicated by SI Anuj Nautiyal to Inspector Naresh Kumar Yadav about apprehension of three persons.
According to PW10, he apprised all three accused persons that Ganja has been found in their possession and there was possibility of recovery of more contraband and that they could be subjected to search in presence of Gazetted office or Magistrate. In this regard, PW10 SI Anuj Nautiyal has proved notices under Section 50 of the FIR No. 289/09 10 Act as Ex PW10/A, Ex PW10/B and Ex PW10/C. According to PW10, whereas Ashwani accused submitted in reply to the notices that he did not want himself to be subjected to search in presence Gazetted officer or Magistrate, his companions put forth their refusal to write although they also verbally informed that they did not wish to be subjected to search in presence of Gazetted officer or Magistrate.
PW3 HC Thyagrajan has made statement in this regard in line with statement of PW10 that Ashwani Kumar accused noted down his reply to be subjected to search in presence of Gazetted officer or Magistrate. Statements of PW4 Ct. Vineet Kumar and PW5 Ct. Nemi Chand are on same lines in this regard.
A perusal of notices Ex PW3/A, Ex PW3/B and Ex PW3/C would reveal that these were served upon accused Ashwani Kumar, Kalia Behra and Rgahumori Naik on 10.09.2009 and signatures of HC Thyagrajan and Ct. Nemi Prasad appear on them as attesting witnesses.
From the material available on record, this Court finds that prosecution has duly proved service of notices under Section 50 of the Act upon the absence and his companions and that they opted not to be subjected to further search in presence of Gazetted officer or Magistrate.
FIR No. 289/09 11
Recoveries
17. It is in the statements of PWs HC Thyagrajan, Ct. Vineet Kumar and Ct. Nemi Chand that Ashwani Kumar was found in possession of 21 kgs of Ganja, Raghu Mori Nayak was found in possession of 12 kgs of Ganja and accused Kalia Behra was also found in possession of 12 kgs of Ganja. 2 samples each of 1 kg was drawn from the Ganja recovered from each accused and marked as Mark S1 & S2, S3 & S4 and Mark S5 & S6 respectively. Remaining Ganja was kept in the plastic bags and marked as Mark A1, A2 and A3 respectively. These three parcels were sealed with the seal of 'AN' by SI Anil Nautiyal. Form FSL was filled and impression of the seal use was affixed on it. All the three parcels were seized vide memo Ex PW3/E, Ex PW3/F and Ex PW3/G. Learned defence counsel has submitted that case property was not got signed from the accused persons. However, as rightly submitted by learned Addl. PP, no provisions or rule has been cited by learned defence counsel under which signatures of the accused are required to be obtained on the case property. Therefore, this contention is without any merit.
In view of the above discussion decisions in UOI vs. Bal Mukund & Ors 2009 Cri. L. J. 2407, Valsala v. State of Kerala FIR No. 289/09 12 1993 (1) CC Cases 178 (SC) & Eze Val Okeke @ Val Eze v. Narcotics Control Bureau 2005 (1) C. C. Cases (HC) 72 does not come to aid of the accused so as to say that this is not case of compliance with provisions of Section 55 of the Act.
It may be mentioned here that statement of PW4 Ct. Vineet Kumar has not been subjected to cross examination on behalf of Kalia Behra accused and as such the same has gone unchallenged on the point of apprehension of the accused, proceedings conducted at the spot before and after the recovery.
Statement of SHO has also gone unchallenged for want of any cross examination on behalf of accused Kalia Behra.
Nonjoining of public witnesses
18. Learned defence counsel has submitted that despite availability of persons from public, no witness was joined by the IO which adversely affects the case of prosecution.
PW 10 SI Anuj Nautiyal stated in his statement that no public person was present there and as such none was asked to join the investigation. This explanation appears to have been given by the witness for the period when Ct. Vineet was sent to bring weight and scale and the SHO was informed about apprehension of the accused persons.
FIR No. 289/09 13
A perusal of statements of witness to the recovery would reveal that it is in their testimony that it is thickly populated area but the place where the accused persons were apprehended was not crowded, the same being on one side of the platform no. 6 & 7. It has also come in the statements of the witnesses that some persons were asked to join the party, but none came forward. Therefore, it cannot be said that there is contradiction in the statements of witnesses when PW10 stated that no person from the public was present and that none was asked to to join the investigation.
It is true that it has appeared in the statements of witnesses that on the railway station, there are permanent establishment and railway employees are available in abundance, but this Court finds that nonjoining of independent witness in this case does not adversely affect the case of prosecution.
On the point of nonjoining of independent witnesses, in the case of Ajmer Singh vs. State of Haryana (2010) 3 SCC 746, Hon'ble Apex Court observed as under: "The submission that the evidence of the official witnesses cannot be relied upon as their testimony has not been corroborated by any independent witness cannot be accepted. 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 FIR No. 289/09 14 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. It may not be possible to find independent witness at all places, at all times. 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."
It is significant to note that in this case learned counsel for the accused persons have not been able to point out any contradiction or discrepancy in the statements of prosecution witnesses. On appreciating the evidence available on record, this Court finds that nonjoining of witness from public in this case is of no avail to the accused persons.
Possibility of tampering with the case property ruled out
19. It is case of prosecution that after the case property was sealed at the spot by SI Anuj Nautiyal, SI handed over the seal bearing impression 'AN' to HC Vineet Kumar. While appearing in Court as PW10 SI Anuj Nautiyal has deposed about this fact.
PW4 Ct. Vineet has also deposed about factum of entrustment of seal to him by SI Anuj Nautiyal. It is also in the statements of FIR No. 289/09 15 witnesses that FSL forms were filled and impression of the seal 'AN' was affixed on it.
A perusal of the rukka Ex PW10/A despatched from the spot at 4 pm would reveal that the same also contains the factum of entrustment of seal by SI Anuj Nautiyal to Ct. Vineet. On the basis of this rukka, FIR Ex PW1/A was registered.
Even in the recovery memos Ex PW3/B, E & F factum of entrustment of seal also finds mention. In this way, it stands established that SI Anuj Nautiyal took steps at the spot to rule out possibility of tampering with case property.
Despatch of case property to SHO
20. According to PW10 SI Anuj Nautiyal, rukka was sent to PS from the spot through Ct. Nemi Prasad. At the same time, all the sealed parcels, form FSL and copies of seizure memo were also handed over to him with the direction that he shall hand over the rukka to the Duty Officer and produce the parcels, FSL form and copies of seizure memo before the SHO.
Ct. Nemi Prasad has appeared as PW5 and deposed having collected rukka from SI Anuj Nautiyal, sealed parcels, FSL forms and copies of seizure memos.
Further according to PW5 Ct. Nemi Prasad on reaching the police station Ct. Nemi Prasad at about 4.07 pm, he handed over the FIR No. 289/09 16 rukka to the Duty Officer which led to registration of this case.
As regards the sealed parcels, forms FSL and copies of seizure memo, according to PW5, he produced the same before Inspector Naresh Kumar Yadav, who in turn sealed the same with his seal and mentioned particulars of the case on each item.
PW7 Inspector Naresh Kumar Yadav has supported the prosecution version regarding production of case property before him at the police station on 10.09.2009 at 4.15 pm by Ct. Nemi Prasad. According to the Inspector all the parcels were bearing seals of 'AN' and that forms FSL were also bearing impression of this seal. Further according to Inspector, he put his seal bearing impression 'NKY' on each parcel and also affixed its impression on FSL forms. Then he mentioned particulars of the case on each parcel, forms FSL and copies of seizure memo. Thereafter, he deposited the same with MHC(M) and in proof of it put his initials in the relevant column of register no. 19. He also lodged DD No. 22A Ex PW7/B in this regard.
Prosecution has examined PW11 HC Davis V. J., the concerned MHC(M) who dealt with the case property. He has proved entry no. 3220 Ex PW11/A made in register no. 19 regarding deposit of the case property with him by Inspector Naresh Kumar Yadav.
Learned defence counsel has referred to entry Ex PW11/A and pointed out that it does not bear signatures of Inspector Naresh FIR No. 289/09 17 Kumar Yadav and that absence of signatures in this entry creates doubt regarding deposit of the case property by the Inspector on that date. It is true that according to MHC(M) entry Ex PW11/A, does not bearing signatures of Inspector Naresh Kumar Yadav, but absence thereof does not adversely effect the case of prosecution, when so far as possibility of tampering with the case property is concerned Inspector Naresh Kumar Yadav has fully supported the case of prosecution regarding of deposit of case property by him with the MHC(M) on 10.09.2009 after having affixed his seals on all the parcels and copies of recovery memo.
Ex PW11/A has again been referred to by learned defence counsel to point out that there is no mention in it about deposit of FSL forms. It is true that there is no mention about deposit of FSL forms with the MHC(M) alongwith case property but a perusal of this entry would reveal that MHC(M) opted to write down extract of the recovery memos in this entry. The MHC(M) should have made specific mention of deposit of FSL forms with him. However, non mentioning of this fact does not help accused as its stands established that the sealed parcels were received at FSL alongwith forwarding letter/FSL form. Even otherwise, without any FSL form, no case property is accepted at the Forensic Science Laboratory. FIR No. 289/09 18
In report Ex PX and PX1 it specifically finds mention that FSL form found accompanying the sealed parcels sent to the laboratory for analysis. Copy of Road Certificate Ex PW11/C would reveal that factum of despatch of FSL form alongwith sealed parcel finds specific mention therein. This goes to show that actually FSL forms were deposited by the Inspector with MHC(M) and one of the FSL form came to be forwarded to the laboratory alongwith sealed parcels. Therefore, this Court does not find any merit in the contention of learned defence counsel that adverse inference should be drawn against the prosecution when there is no mention of deposit of FSL forms with the MHC(M).
DD No. 22 Ex PW7/B dated 10.09.2009 was recorded at police station at 4.25 pm regarding arrival of Ct. Nemi Prasad and production of three FSL forms duly filled in, bearing impression of seal 'AN', three copies of recovery memos, nine sealed parcels with seal bearing impression 'AN'. In view of this DD No. 22 Ex PW7/B lends corroboration to the version of prosecution that the FSL forms were accompanying the sealed parcels, carbon copies of recovery memo when brought to the police station by Ct. Nemi Prasad and that the same were sealed by the Inspector with his seal bearing impression NKY and then deposited with MHC(M). FIR No. 289/09 19
In view of this evidence available on record, this Court finds that prosecution has established that FSL forms were also deposited with the MHC(M) on the same day. As a result, prosecution has ruled out possibility of tampering with the case property at the police station during the period same remained in the malkhana.
Further to rule out the possibility of tampering with the case property, prosecution has examined PW6 Ct. Shambhu Prasad. According to PW6, he collected six sealed parcels from MHC(M) on 07.10.2009 with FSL form and deposited the same at FSL. There is nothing in the statement of PW6 to disbelive his testimony. Rather his testimony finds corroboration from the FSL reports and the entries recorded by the PW6 HC Sunil Kumar in register no. 19 regarding despatch of the sealed parcels to FSL through him and about their deposit at FSL on the same day.
Compliance of Section 57 of the Act
21. In order to prove compliance with provisions under Section 57 of the Act, prosecution has examined PW2 HC Ajit Kumar from the office of ACP. According to this witness, report Ex PW2/A was received at the office of ACP on 1.09.2009 at 3.30 pm. Learned Addl. PP has rightly pointed out that this report bears signatures of ACP with date 11.09.2009 and time as 4 pm and further that from the date FIR No. 289/09 20 and time available, and the entry made by PW2 in Ex PW2/B, regarding arrival of this report under Section 57 of the Act, it has been duly established that this is a case of due compliance with provision of Section 57 of the Act. In the given circumstances, even if the SHO PW7 Inspector Naresh Kumar Yadav has not stated about communication of report under Section 57 of the Act, same does not adversely affect the case of prosecution.
Late despatch of the sample
22. One of the contention raised by learned defence counsel is that recovery is alleged to have been made on 10.09.2009 but the samples reached FSL on 07.10.2009 and as such adverse inference should be drawn against the prosecution on account of late despatch of the sample at FSL.
It is true that as per prosecution version, recoveries were made on 10.09.2009 and samples reached FSL on 07.10.2009 but when prosecution has established on record that there was no possibility of tampering with the case property, late despatch of the samples from the malkhana by the MHC(M) to FSL does not help the accused. There are not many Forensic Laboratories as rightly submitted by learned Addl. PP and at times priority letter has to be got issued by the IO from higher Police officer for despatch of the samples to the FIR No. 289/09 21 FSL, having regard to the fact that every day number of samples are despatched to these laboratory for analysis Expert Result
23. A perusal of the report Ex PX and Ex PX1 would reveal that Dr. Dhruv Sharma, Sr. Scientific Officer (Biology) on anaylsis of the contests of the six samples opined that the contents were identified to be of Indian Hemp Plant i.e. Cannabis Sativa (Ganja). Ms. Kavita Goel, Sr. Scientific Officer (Chemistry) vide report Ex PX1 opined that contents of six parcels were Ganja (Cannabis). There is nothing on record to brushed aside the opinion expressed by two expert witnesses.
From the report of expert, this Court finds that prosecution has established that the accused persons were found in possession of Ganja on the given date, time and place.
Learned defence counsel has submitted that expert witnesses have mentioned in report Ex PX and Ex PX1 quantity of sample and that the quantity be calculated accordingly and not as narrated by the prosecution witnesses. In support this contention learned defence counsel has referred to decision in Rajesh Jagdamba Avasthi vs. State of Goa 2005(1) RCR (Criminal) 406.
As noticed above, it is case of the prosecution that two samples FIR No. 289/09 22 each of 1 kg each was drawn from the case property recovered from the accused persons. Six samples reached FSL on 07.10.2009. The experts have mentioned in the report quantity of each sample as the same was found on being weighed at FSL soon before analysis. The quantity of the sample cannot be taken into consideration to calculate the total recovery. In Rajesh Dagjamba's case (supra), PW4 was handed over the seal by the IO and it is who carried the sealed parcels to the police station and then handed over the sealed parcels as well as the seal to the SHO.
However, herein seal was handed over to Ct. Vineet whereas sealed parcels were taken to the police station by Ct. Nemi Prasad, Furthermore, prosecution has ruled out possibility of tampering with the case property in the manner indicated above. Therefore, decision in Rajesh Jagdamba's case (supra) does not come to the aid of the accused persons.
Conclusion
24. In view of the above discussion, this court finds that prosecution has fully established its case against the two accused persons that on 10.09.2009 at about 12.50 pm accused Ashwani and Kalia Behra kept in their possession of 21 kilograms and 12 kilograms of Ganja respectively. Accordingly, Ashwani accused is held guilty of the FIR No. 289/09 23 offence under Section 20 (C) of Narcotics Drugs and Psychotropic Substances Act and accused Kalia Behra is held guilty of the offence U/s 20(B) of Narcotics Drugs and Psychotropic Substances Act and both are convicted thereunder.
Let the convicts be heard on the point of sentence.
Announced in Open Court on 01.05.2012 (Narinder Kumar ) Special Judge(NDPS) Delhi FIR No. 289/09 24 IN THE COURT OF SH. NARINDER KUMAR SPECIAL JUDGE, NDPS (CENTRAL); DELHI SC No. 66/2009 FIR No.289/2009 PS New Delhi Railway Station U/s 20 Narcotics Drugs Psychotropic Substances Act. In the matter of: State Versus
1. Ashwani Kumar S/o Sh. Anoop Singh R/o 5/20, Gali No. 5, Madhu Vihar, Solanki Market, Dwarka, Delhi.
2. Kalia Behra S/o Sh. Horo Behra, R/o V & PO, Chuduwara, District Cuttak, Orissa. ......Accused persons.
ORDER ON SENTENCE 01.05.2012 Present: Sh. Rajiv Mohan, Addl. P.P. For State.
Ashwani Kumar, convict in custody.
Kalia Behra, convict in person.
I have heard the convicts on the point of sentence. FIR No. 289/09 25 Convicts pray for leniency submitting that they are not previous convicts and this is their first offence. Mother and wife of Ashwani Kumar, convict are also present in court. They have also prayed for lenient view on the point of sentence while submitting that Ashwani Kumar, convict has three daughters to support and that he is the only earning member in the family, his father having already left this world in the year 2005.
The convicts have been held guilty on proof of the allegations that they were carrying Ganja (Cannabis).
Section 20 (b) of the Act provides that in case of intermediatory quantity i.e. lesser than commercial quantity but greater than small quantity, the substantive period of sentence may extend to ten years and with fine which may extend to Rs.1 lac.
Sec.20(C) of the Act provides minimum punishment by way of rigorous imprisonment for a term of 10 years and fine not less than Rs.One lac.
Having regard to all the facts and circumstances, Ashwani Kumar, convict having been found in possession of 21 Kgs. of Ganja is hereby sentenced to rigorous imprisonment for ten years and to pay fine of Rs.One lac or in default of payment of fine to undergo further RI for One year, U/s 20 (C) of the Act.
FIR No. 289/09 26
Kalia Behra, convict having been found in possession of 12 Kgs. of Ganja is hereby sentenced to rigorous imprisonment for two years and to pay fine of Rs.10,000/ or in default of payment of fine to undergo further RI for two months, U/s 20 (B) of the Act.
The period of imprisonment already undergone during investigation, inquiry and trial to be set off against the period of sentence awarded vide this judgment.
Case property be disposed of in accordance with law on expiry of period for Appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 01.05.2012 (Narinder Kumar )
Special Judge(Central)
Delhi.
FIR No. 289/09 27