Delhi District Court
State vs 1. Rattan Singh on 18 January, 2012
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus 1. Rattan Singh
S/o Sh Devinder Singh
R/o F-41, Katwariya Sarai
New Delhi.
Permanent Address:
No. 3, Kankullia Road
Kolkata-29.
2. Bilal
S/o Sh Mustaffa
R/o Jhuggi, Near Railway
Crossing, Okhla Sabzi Mandi,
Okhla, New Delhi.
Permanent Address:
Village Alok Jhari,
PS & PO Dinhata,
District Kuch Vihar
West Bengal.
SC No. : 05A/08
FIR No. : 545/07
U/S : 20 NDPS Act
PS : Sri Niwas Puri
ORDER ON SENTENCE
Present: Sh R.K.Gurjar Addl. PP for the State.
Both the convicts in JC.
Sh S.K.Manan counsel for convict Bilal.
Sh Kuldeep Kumar proxy counsel for Sh Feroz
Ahmed Advocate for convict Rattan Singh.
SC No. 05A/08 State Vs Rattan Singh & Ors.
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After having convicted the accused persons for
the offence U/S 20(b)(ii)(C) of the NDPS Act vide my
judgment dated 16.01.2012 arguments have been heard today
as advanced by Sh R.K.Gurjar, Ld Additional PP for the
State, Sh S.K.Manan counsel for convict Bilal and Sh
Kuldeep Kumar, proxy counsel for Sh Feroz Ahmed, counsel
for convict Rattan Singh on the point of sentence to be
awarded to the convicts. The submissions made by the
convicts themselves have also been heard.
2. It has been submitted on behalf of the State
that the maximum term of imprisonment be imposed upon the
convicts and they do not deserve any leniency from this
court as they both have been found guilty of possessing a
commercial quantity of Charas. The offence punishable
U/S 20(b)(ii)(C) of the NDPS Act, which has been proved
against the convicts, carries a minimum term of rigorous
imprisonment for a period of 10 years extending up to 20
years and also a fine of not less than Rs 1 Lac and
extending up to Rs 2 Lacs.
3. On the other hand, it is submitted on behalf of
convict Bilal that he is still young aged 31 years only
and is unmarried and has yet to settle in life. He is
also stated to be having the liability of maintain his
old mother and one unmarried sister as he is not having
any brother and his father had also remarried with some
SC No. 05A/08 State Vs Rattan Singh & Ors.
3
other lady and had started residing with her. His other
sister is stated to be married and settled in her life.
It is stated that no other previous involvement of the
convict in any similar case is on record and hence,
request has been made for imposing the minimum sentence
upon the convict.
4. On behalf of the convict Rattan Singh, it has
been submitted that he is aged about 33 years only and
was married in the year of his arrest in this case
itself, i.e the year 2007, and one female child was also
born out of his wedlock after that and the above child
needs the love and affection of a father and the above
convict had never remained in the company of the above
child as he had been in judicial custody in this case
throughout since his arrest and was even never released
on bail. It is also stated that it is the first offence
of the convict and lenient view be taken in awarding
sentence to him as the quantity recovered in his
possession is just the commercial quantity prescribed
under the NDPS Act, i.e 1 Kg only, and not more than
that.
5. I have thoughtfully considered the above
submissions being advanced on the point of sentence.
Keeping in view the age, family background and all other
attending circumstances, both the convicts are being
SC No. 05A/08 State Vs Rattan Singh & Ors.
4
awarded the minimum sentence of rigorous imprisonment for
a period of 10 years each and a fine of Rs 1 Lac each for
the abovesaid offence. In case of non payment of fine
they shall further undergo simple imprisonment for a
period of six months each. They both are stated to be in
the judicial custody since the day of their arrest in
this case and had never been on interim bail and hence,
the period of custody already undergone by both the
convicts is allowed to be set off in terms of the
provisions of Section 428 Cr.P.C. Let them to undergo the
above sentence as per law.
6. A copy of the judgment and the order on
sentence be supplied to both the convicts free of cost.
7. 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. File be consigned to the
record room.
Announced in the open
court on 18.01.2012 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 05A/08 State Vs Rattan Singh & Ors.
5
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus 1. Rattan Singh
S/o Sh Devinder Singh
R/o F-41, Katwariya Sarai
New Delhi.
Permanent Address:
No. 3, Kankullia Road
Kolkata-29.
2. Bilal
S/o Sh Mustaffa
R/o Jhuggi, Near Railway
Crossing, Okhla Sabzi Mandi,
Okhla, New Delhi.
Permanent Address:
Village Alok Jhari,
PS & PO Dinhata,
District Kuch Vihar
West Bengal.
SC No. : 05A/08
FIR No. : 545/07
U/S : 20 NDPS Act
PS : Sri Niwas Puri
Date of institution : 16.01.2008
Date of reserving judgment : 10.01.2012
Date of pronouncement : 16.01.2012
SC No. 05A/08 State Vs Rattan Singh & Ors.
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J U D G M E N T
Both the above accused have been sent to face trial by the SHO PS Sri Niwas Puri on allegations that on 28.10.2007 a secret informer had come in the office of the Special Staff, District South and informed the IO/PW3 SI Balbir Singh at about 01.00 pm that two persons namely Rattan and Bilal, who were dealing in charas, would come in front of Okhla Sabji Mandi, Captain Gaur Marg at about 03.00 pm to deliver the charas. After the IO/PW3 had satisfied himself about the above information, he had produced the informer before Inspector Vijay Singh, I/C, Special Staff and Inspector Vijay Singh had also telephonically informed the ACP, Operations Cell about the same and on being satisfied, he had directed SI Balbir Singh to take immediate legal action.
2. It is alleged that thereafter the IO/PW3 had got lodged one DD No. 5 Ex. PA at about 01.30 PM and copy of the above DD was sent to SHO, S.N. Puri through Ct. Ashok. He had then organized a raiding party comprising of PW4 ASI Ashok, PW6 HC Hawa Singh, PW10 HC Shyamvir, HC Manoj, HC Vijay and HC Bir Singh and they all, alongwith the secret informer, had reached the spot at about 02.30 PM in their official vehicle No. DL 1CJ 0568, make Qualis, and on the way at the Chirag Delhi bus stop and also at the Kalkaji Temple the IO/PW3 had also requested SC No. 05A/08 State Vs Rattan Singh & Ors.
7some passersby to join the raiding team, but none of them had agreed. However, no notice could be given to any of them due to the paucity of time.
3. It is alleged in the chargesheet that all the members of the raiding team had taken their respective positions opposite the Okhla Mandi on the Captain Gaur Marg, as per the instructions of the IO/PW3, and at about 03.15 PM they had seen two boys coming from the side of East of Kailash and the secret informer had pointed out the boy holding a white colour polythene in his hand as accused Rattan Singh and the other boy holding a black colour polythene in his hand as the accused Bilal and the informer had then left the place. Both the accused persons were then apprehended by the police party and they were apprised about the above secret information regarding their being in possession of charas for supply and they were also informed about their legal rights to be searched for the same in the presence of a Magistrate or a Gazetted Officer and were also offered to take the search of the police party. The IO/PW3 had also served written notices U/S 50 of the NDPS Act Ex. PW3/B and PW3/A respectively upon the accused persons in this regard, but vide their replies Ex. PW3/D and PW3/C respectively both the accused persons had refused for the same. In the meanwhile few public persons had also gathered at the spot and they were requested by the SC No. 05A/08 State Vs Rattan Singh & Ors.
8IO/PW3 to join the proceedings, but none of them had agreed.
4. It is further alleged in the chargesheet that on checking of the above white polythene held by accused Rattan Singh in his hand it was found to contain one other black colour polythene containing some black colour 'battinuma' substance, which from its smell and appearance etc. was identified to be charas and which was also confirmed to be charas by the above accused. The weight of the above substance was found to be 1 kg and similarly the above black colour polythene being carried by the accused Bilal was also found be containing charas weighing 2 Kg. IO/PW-3 had taken out 2 samples of 100 Grams each from the above charas found in the possession of both the accused persons and had prepared separate pullandas thereof and the sample pullandas of charas recovered from the accused Rattan Singh were given Serial No. A1 and A2 and the sample pullandas of charas recovered from the accused Bilal were given Serial No. B1 and B2 and the pullandas of the remaining charas recovered from them were given Serial No. A and B respectively. All the above pullandas were sealed by the IO/PW3 with the seals of DK, Forms FSL were filled up by him and the above pullandas and the FSL Forms were taken into possession vide seizure memos Ex. PW-3/E and PW3/F respectively. Seal after use was given to PW6/HC Hawa SC No. 05A/08 State Vs Rattan Singh & Ors.
9Singh.
5. It is also a part of the chargesheet that thereafter the IO/PW3 had prepared the rukka Ex. PW3/G and had handed over the same to HC Hawa Singh, alongwith the above six exhibits/sealed pullandas, FSL Forms and copies of the seizure memos, with directions to go to the PS and hand over the rukka to the Duty officer and the exhibits/pullandas and documents to the SHO for the proceedings U/S 55 of the NDPS Act. On the basis of the above rukka FIR Ex. PW1/A of this case was registered and PW6 had returned back to the spot alongwith a copy of the FIR and the original rukka and had handed over the same to the IO/PW3. The IO/PW3 had then arrested both the accused persons vide arrest memos Ex. PW3/J and PW3/K, conducted their personal search vide memos Ex. PW3/L and PW3/M, recorded their disclosure statements Ex. PW3/P and PW3/N respectively and had also prepared the site plan Ex. PW3/H. He had also subsequently sent the exhibits of this case to FSL, Rohini for expert opinion and had filed the chargesheet in this case after recording of the statements of the witnesses and pending the receipt of the FSL result.
6. The chargesheet was filed in this court on 16.01.2008 and cognizance thereof was taken. The FSL result was also filed in this court subsequently and SC No. 05A/08 State Vs Rattan Singh & Ors.
10therein all the above four samples were confirmed to be of charas. It is also necessary to mention here that on an application moved on behalf of the accused persons, two fresh samples were also taken out of the remaining case property in this court on 01.10.2009 and the same were sent for retesting to CRCL for determination of the percentage of Tetrahydrocannabinol (THC) therein and in the report of the CRCL the THC percentage in the above samples were given as 4.9% & 5.1% only.
7. A prima facie case for the offence punishable U/S 20(b)(ii)(C) of the NDPS Act was found to be made out against both the accused persons and a separate charge for the abovesaid offence was also framed against them by this court on 04.02.2009, to which they had pleaded not guilty and claimed trial.
8. The prosecution in support of its case has examined total 11 witnesses on record and their names and the purpose of examination etc. is being stated herein below:-
(i) PW1 HC Ram Kumar is the Duty Officer of this case and he has proved on record the FIR of this case recorded by him as Ex. PW1/A and his endorsement made on the original rukka regarding registration of the FIR as Ex. PW1/B. SC No. 05A/08 State Vs Rattan Singh & Ors.11
(ii) PW2 Inspector Mahavir Singh was posted as Additional SHO at PS S.N. Puri and he has stated that on 28.10.2007 at about 02.30 pm Ct. Ashok Kumar of Special Staff had produced before him one DD No. 5, which he had forwarded to ACP, Lajpat Nagar. He has also stated that on the same day at about 07.10 pm a rukka was received in the PS through HC Hawa Singh on the basis of which the FIR of this case was registered by the duty officer and HC Hawa Singh had also handed over to him six sealed exhibits, sealed with the seals of DK and two seizure memos and after putting his seals of MS on the above exhibits and the FSL form, he had deposited the same in the malkhana.
(iii) PW3 IO/SI Balbir Singh, PW4 ASI Ashok Kumar, PW6 HC Hawa Singh and PW10 HC Shyamvir are all the members of the raiding police team which had apprehended both the above accused persons with the above quantity of charas. They all have broadly deposed on the above lines of the prosecution story and have identified the accused persons as well as the remaining case property and the remnants of the samples. Besides the above, PW10 has also identified, inter-alia, the carbon copies of the notices U/S 50 of the NDPS Act given to the accused persons and recovered in their personal search as Ex. P8 and P7 respectively.
SC No. 05A/08 State Vs Rattan Singh & Ors.
12(iv) PW5 Ct. Harender Singh had taken the four sealed sample pullandas of this case, along with the FSL forms, to FSL, Rohini on 28.11.2007 on the directions of the IO/PW3 and after depositing the same in the FSL he had handed over back the receipt thereof to the MHC(M). He has stated that the pullandas were not tempered with while the same were in his custody.
(v) PW7 ASI Kailash was working as a Reader to the ACP, Lajpat Nagar on 29.10.2007 when an information U/S 57 of the NDPS Act Ex. PW7/A was received in their office and was diaried at Serial No. 3709. He has stated that the above information was placed before the then ACP Sh Sibesh Singh and was perused by him.
(vi) PW8 Sh Sibesh Singh is the then ACP, Lajpat Nagar, who had received and perused the above information Ex. PW7/A (carbon copy thereof is also Ex. PW3/Q).
(vii) PW9 HC Ashok Kumar was posted as a Constable in the office of the Special Staff of district South at the relevant time and he had taken a copy of DD No. 5 Ex. PA (carbon copy) from the IO/PW3 to SHO, PS S.N. Puri and had delivered the same to PW2 Inspector Mahavir Singh, who was working as SHO as the regular SHO was on leave. He has also got recorded one DD No. 7 regarding his return in his office.
SC No. 05A/08 State Vs Rattan Singh & Ors.
13(viii) PW11 HC Om Prakash was working as MHC(M) of PS S.N. Puri at the relevant time when on 28.10.2007 the above six sealed pullandas, FSL forms and carbon copies of the seizure memos were deposited with him in the malkhana by PW2 Inspector Mahavir Singh. He has stated that on the same day the personal search articles of the accused persons, including the carbon copies of the notices U/S 50 of the NDPS Act recovered in their search, were also deposited with him by the IO/PW3. He has also stated that the four sample pullandas were sent to FSL on 28.11.2007 and the remnants thereof, along with the result, were received back on 22.05.2008. He has further proved on record a copy of the relevant entry No. 344 of his register No. 19 regarding the above deposits and movement of the case property etc. as Ex. PW11/C, a copy of the road certificate No. 133/21/07 regarding sending of the samples to FSL as Ex. PW11/A and the acknowledgment receipt thereof in the FSL as Ex. PW11/B. He has also stated that so long as the above pullandas were in his custody, no body tampered with the same.
9. Besides the above evidence, the FSL result as well as the CRCL result regarding the analysis of the above said samples, as stated above, were also tendered on record by Ld Additional PP for the State as Ex. PA/1 and PA/2 respectively.
SC No. 05A/08 State Vs Rattan Singh & Ors.
1410. After the conclusion of the prosecution evidence all the incriminating evidence brought on record was put to the accused persons and the same was denied by them to be incorrect. They both have claimed themselves to be innocent and to have been falsely implicated in this case by the police. It was claimed by the accused Rattan Singh that some police officials had took him from Okhla Bus Stand on 24.10.2007 at about 06.30 PM and he was taken to the office of the Special Staff at Ambedkar Nagar and was subsequently falsely implicated in this case after planting the above charas upon him. The accused Bilal has also claimed to had been picked up by the police from the Okhla Sabji Mandi on 24.10.2007 at about 09.30 PM and has further stated that he was also taken to the Special Staff office of the police at Ambedkar Nagar and charas was planted upon him. However, no defence evidence was given by the accused Bilal though the accused Rattan Singh has chosen to lead evidence in his defence.
11. One DW Ms Pinky Singh, who is the sister of accused Rattan Singh, was examined in his defence by the above accused and she has stated that she was residing with his brother Rattan Singh in the year 2007 and the accused Rattan Singh was running a chicken corner in the market of Beg Sarai, Delhi. She has stated that one day some quarrel had taken place between her brother and SC No. 05A/08 State Vs Rattan Singh & Ors.
15local police officials and his brother was physically assaulted and was threatened by the police officials to be falsely implicated in some case and subsequently he was also implicated in this case falsely.
12. I have heard the arguments advanced by Sh R.K. Gurjar, Ld Additional PP for the State and Sh Feroz Ahmed, Ld counsel for the accused Rattan Singh and Sh S.K. Manan, Ld counsel for accused Bilal and have also appreciated the evidence led on record by the prosecution and the defence and also the other records of the case.
13. It has been argued by Ld Additional PP for the State that there are consistent and corroborative statements of the IO/PW3 and other recovery witnesses examined on record regarding the apprehension of the accused persons from the above said spot and with the above quantities of charas and there is no reason to disbelieve the same. It is also argued by him that the defence of the accused persons regarding their false implication in this case is contradictory and is not substantiated by any satisfactory evidence and hence, it is a fit case where the prosecution story should be believed and both the accused persons should be convicted for the offence for which charges have been framed against them.
SC No. 05A/08 State Vs Rattan Singh & Ors.
1614. On the other hand, it has been argued by Ld defence counsel for accused Rattan Singh that there is no public or independent witness to support the depositions of the police witnesses of recovery and further though the Inspector, Special Staff was present in his office when the alleged secret information was received there but still he had not joined the raiding team and hence, the prosecution story should not be believed. It is also argued by him that the prosecution has not proved its case beyond reasonable doubts and it is also his contention that the THC percentage of the charas in the CRCL report Ex. PA/2 has been opined to be only 4.9% and 5.1% and hence, the quantities of charas found in possession of the accused persons can be taken to be 'small quantities' of the above substance only and hence, the accused persons should be given benefit of Section 27 of the NDPS Act which prescribes the punishment for consumption of a narcotic drug or psychotropic substance.
15. Besides the above arguments, Ld counsel representing the accused Bilal has also argued that the particulars of the case like FIR number etc. are found written on the documents like seizure memos Ex. PW3/E and PW3/F though these documents were prepared before the registration of the case and since there is no explanation in this regard, the prosecution case should be disbelieved as it shows that these documents were SC No. 05A/08 State Vs Rattan Singh & Ors.
17prepared subsequent to the registration of the case and the entire story of the prosecution is false. It is also his argument that there is a delay of about one month in sending of the samples to FSL and further that the complainant SI Balbir Singh is himself the investigating officer of this case and the same had vitiated the entire investigation and the accused persons are entitled to be acquitted in this case.
16. The arguments being raised by Ld defence counsels are being dealt with point wise.
NON JOINING OF PUBLIC WITNESSES
(i) As far as the argument of Ld defence counsels regarding the non joining of the public witnesses is concerned, it is a fact of common knowledge that the public witnesses are always scared to become a witness in a criminal case and it is very hard to find public witnesses these days.
(ii) Reference in this regard can be made to a judgment of the Hon'ble 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:
SC No. 05A/08 State Vs Rattan Singh & Ors.18
"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 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 SC No. 05A/08 State Vs Rattan Singh & Ors.19
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.
(iii) Reference in this regard can also be made to a judgement 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.
(iv) Therefore, the prosecution case cannot be disbelieved merely on the ground of non joining of the public witnesses if the depositions made by the police witnesses are found to be convincing and acceptable.
Moreover, the depositions made by the IO as well as the other witnesses of recovery clearly show that efforts and requests were made by the IO/PW3 at least thrice, i.e. twice on the way at Chirag Delhi bus stop and outside the Kalkaji Mandir and the third time at the spot itself, to join the public persons, but none of them had agreed to join and he has also stated that no proceedings could be SC No. 05A/08 State Vs Rattan Singh & Ors.
20conducted against any of them due to the paucity of time.
(v) In view of the above judgments, the judgments in cases Union Territory, Chandigarh Vs Shamsher Singh & Ors. 1992 (2) Recent Criminal Reports 67 (P&H), Anup Joshi Vs State 1992 (2) Recent Criminal Reports 342 (DHC) and Prithvi Pal Singh @ Munna Vs State 2000 III AD (Delhi) 181, being relied upon by Ld defence counsel for accused Bilal are of no use.
NON JOINING OF INSPECTOR SPECIAL STAFF IN THE RAIDING TEAM
(i) It is the argument of Ld counsel for the accused Rattan Singh that though the Inspector Special Staff Sh Vijay Singh was also present in his office at the relevant time of receipt of the secret information and it has also come on record in the statements of the police witnesses of recovery that the IO/PW3 had apprised the above Inspector about the above secret information and the above Inspector had also talked with the secret informer, but even then there is no explanation on record as to why Inspector Vijay Singh had not participated in the alleged raid leading to the apprehension of the accused and the recovery of the above contraband substance from him. I find no merit in this contention of Ld defence counsel because one competent officer of SC No. 05A/08 State Vs Rattan Singh & Ors.
21the rank of SI was already asked to head the raiding team and hence, there was no requirement or necessity of participation of the above Inspector himself in the raid proceedings. It is also not the argument of Ld defence counsels that the IO/PW3 SI Balbir Singh was not competent to effect the above seizure of the contraband substance. Hence, the prosecution case cannot be doubted merely because Inspector Vijay Singh was not a member of the raiding team.
THC PERCENTAGE IN THE SAMPLES OF THE CHARAS OR THE PURITY OF THE CHARAS
(i) It has been argued by both the Ld defence counsels that in the two samples subsequently drawn in this court, out of the charas allegedly recovered from the accused, and sent to the CRCL, the percentage of THC in the above samples has been found to be only 4.9% and 5.1% respectively and thus going by the above purity percentage, the percentage/purity weight of the above charas found in possession of the accused Rattan Singh and Bilal comes to only 50 Grams and 100 Grams respectively and since 100 Grams of charas is prescribed to be a 'small quantity' under the NDPS Act, the benefit of Section 27 of the NDPS Act, which deals with the punishment for consumption of narcotic drugs of psychotropic substances, should be extended to the SC No. 05A/08 State Vs Rattan Singh & Ors.
22accused or in the alternative they can be convicted only for possessing small quantities of charas and not commercial quantities.
(ii) As far as Section 27 of the NDPS Act is concerned, the same is not applicable to the instant case as it comes into operation when consumption of a narcotic drug or psychotropic substance is there and the relevant Section dealing with possession of small quantity of charas is Section 20(b)(ii)(A) and not Section 27 of the NDPS Act. However, it is now well settled that the percentage of THC in a cannabis substance like charas is not relevant for considering the quantity of the above substance.
(iii) In case of Dilip Vs State, Bail Application No. 2330/08 (decided on 02.07.2010), the question referred to a Division Bench of our own High Court was whether the percentage of THC in a sample of Charas can by itself be determinative of the purity of the sample and further whether such a test is relevant or necessary for the purpose of considering the grant of bail or of awarding of sentence in terms of Section 21 read with Section 37 of the NDPS Act. It was found that since the above reference was regarding Charas, Section 20 of the NDPS Act was the relevant Section and not Section 21 of the said Act. Their lordships have come to a conclusion that SC No. 05A/08 State Vs Rattan Singh & Ors.
23the percentage of THC in a sample of Charas by itself cannot be determinative of the purity of the sample and such a test is neither relevant nor necessary for such purposes. After considering the relevant provisions of the NDPS Act they have further come to a conclusion that the purity of cannabis under the said Act, whether it is Charas of Ganja, is irrelevant and the entire quantity of the seized contraband substance is to be considered and taken into consideration for such purposes. The prepositions of law as laid down in the above case were also referred to and endorsed by the Hon'ble High Court in another matter being WP(C) No. 2377/10 titled Sharvan Chillapa Vs Union of India & Anr. decided on 10.09.2010.
(iv) In view of the above, this argument of Ld defence counsels is also of no use and the entire quantities of charas found to be in possession of the accused persons have to be considered by this court.
APPEARANCE OF CASE PARTICULARS ON DOCUMENTS LIKE SEIZURE MEMOS
(i) The next contention of Ld defence counsels is that the particulars of the case like FIR number and Sections etc. are found written on the seizure memos Ex. PW3/E and PW3/F of the above charas, though the FIR was registered subsequent to the preparation of the above SC No. 05A/08 State Vs Rattan Singh & Ors.
24said documents on the basis of the rukka Ex. PW3/G sent by the IO/PW3 to the PS through PW6 HC Hawa Singh. It is argued by them that since there is no explanation on record from the prosecution as to when the above particulars were written on the above documents, the same is fatal for the prosecution as it shows that the above documents were prepared only after the registration of the case and not at the spot and prior to the registration of the case, as claimed by the police witnesses of recovery. In this regard reliance has also been placed by Ld counsel for accused Bilal on a judgment in case Mohd Javed Vs State 2000 II AD (Delhi) 666.
(ii) In this regard it is observed that though the IO/PW3, PW6 HC Hawa Singh and PW10 HC Shyamvir are silent as to when the above particulars were written on the above documents, but PW4 ASI Ashok Kumar on being questioned by Ld defence counsel for accused Bilal has clearly stated on record that after the registration of the FIR the above particulars were written on the above documents by the IO/PW3 SI Balbir Singh. Hence, there is not found to be any discrepancy in the prosecution evidence in this regard and PW4 has clearly explained the appearance of the above particulars on the above said documents. The Ld defence counsels in their wisdom had not thought it proper to get the above aspect clarified from the remaining witnesses of recovery. Therefore, SC No. 05A/08 State Vs Rattan Singh & Ors.
25this argument of Ld defence counsels is also not of any help to the case of the accused persons.
DELAY IN SENDING THE SAMPLES TO FSL
(i) It has also been argued by Ld defence counsels that there is a delay of about one month in sending the samples of this case to the FSL for testing and since there is no explanation on record from the prosecution side for the above said delay, the same is fatal for the prosecution case and the accused persons are entitled to be acquitted on this ground only. Reliance in this regard has also been placed upon the judgments in cases titled Matloob Vs State (Delhi Administration) II (1997) CCR 835 (DHC) and Ramesh Vs State of Haryana 1998 (1) Recent Criminal Reports 146 (P&H) by Ld counsel for the accused Bilal.
(ii) On perusal of the case file it is found that PW11 HC Om Prakash in his statement has stated that the six sealed pullandas of the case property of this case were deposited with him in the police malkhana on 28.10.2007, i.e. on the day of seizure of the above charas itself, and out of the above pullandas four sample pullandas were sent to FSL on 28.11.2007. Thus, admittedly there is a delay of about one month in sending of the samples to FSL and nothing has also come out on SC No. 05A/08 State Vs Rattan Singh & Ors.
26record from the mouth of prosecution witnesses as to what has resulted in the above delay.
(iii) However, the above delay of about one month in sending of the samples to FSL for testing cannot be said to be huge or inordinate delay. It cannot be ignored that the police officials of almost every police station in Delhi are over burdened with the quantum of the investigation and other works assigned to them and the sending of the exhibits of a case for testing also requires certain formalities to be completed, like obtaining the administrative sanctions of the concerned senior officers and priority letters etc. Hence, merely a delay of one month or so in sending of the sample pullandas to FSL cannot be held to be fatal for the prosecution case, unless there is anything on record to show or suggest that there was any tampering with the above pullandas at any stage or the same had actually caused any prejudice to the accused.
(iv) None of the Ld defence counsels has alleged or pointed out any such tampering with the pullandas of the case property or samples at any stage nor any such tampering with the above pullandas is visible from the record. Rather the depositions made by the concerned MHC(M)/PW11 HC Om Prakash, the sample carrier Ct. Harinder Singh/PW5 and PW2 Inspector Mahavir Singh rule SC No. 05A/08 State Vs Rattan Singh & Ors.
27out any such tampering with the case pullandas at any stage after the preparation thereof by the IO/PW5 and till the deposit of the sample pullandas with the FSL. PW2 has clearly stated on record that after he was entrusted with the above six pullandas of this case, sealed with the seals of DK and along with the forms FSL and seizure memos, he had also affixed his own seals of MS on the pullandas before depositing the same in the malkhana. Even PW11/MHC(M) has deposed about the presence of the above two seals on all the six pullandas at the time of their deposit in the malkhana. Though PW5 Ct. Harinder Singh is silent with regard to the impressions of the seals on the four sample pullandas taken by him to the FSL, but he has clearly stated that all the pullandas were sealed and the same were also accompanied by two FSL forms and there are also specific depositions made by this witness as well as PW11/MHC(M) that the pullandas were not tampered with while the same were in their custody. There are no suggestions given to PW5 or PW11 that the pullandas of the case property or samples were tampered with by them and the documents proved by PW11/MHC(M) on record also corroborate his depositions made on record. Even in the FSL report Ex. PA/1 all the four sealed sample pullandas sent to FSL were found to be in intact condition and the seals of MS & DK affixed thereon had tallied with the specimen seal impressions forwarded along with the forwarding letter (FSL form).
SC No. 05A/08 State Vs Rattan Singh & Ors.
28Hence, in the absence of there being anything on record to show the tamping with the pullandas of the case property and samples, the above delay in sending of the samples to FSL is not material or fatal for the prosecution case.
(v) In case of Ramesh Kumar Rajput @ Khan Vs. The State of NCT of Delhi-MANU/DE/0786/2008 there was a delay of 13 days in sending the sample pullandas to the CFSL, but the same was not considered to be fatal keeping in view the fact that there was nothing on record to suggest or to infer from that the sample pullandas were tampered in the police malkhana. In a recent case of Bilal Ahmad Vs. State-2011 III AD (Crl.) (DHC) 293 also even a delay of 59 days in sending of the samples was considered to be not fatal in the absence of any such evidence or inference of tampering with the sample pullandas on the basis of the record. Hence, in view of the above, this argument of Ld. Defence Counsels also carries no weight.
COMPLAINANT HIMSELF IS THE INVESTIGATING OFFICER
(i) The next contention of Ld. Defence Counsels is that the complainant SI Balbir Singh himself had conducted the entire investigation of this case and hence the entire investigation stands vitiated and the accused SC No. 05A/08 State Vs Rattan Singh & Ors.
29persons are entitled to be acquitted on this ground only. Reliance in this regard has also been placed upon judgments in cases Ummed Vs State of Rajasthan 1996 (1) Crimes 358 (Rajasthan High Court), Gurmit Singh Vs State of Punjab 1998 (2) Recent Criminal Reports 613 (P&H) and Mukhtiar Ahmad Ansari Vs State (NCT of Delhi) 2005 (3) JCC 1317 (SC).
(ii) The above contention of the Ld. Defence Counsels has been considered and the prepositions of law as laid down in the above said cases have been gone through. It is found that the above judgments are not applicable to the facts and circumstances of the present case for different reasons. In the case of Ummed-Supra there were other material factors also which had resulted in the acquittal of the accused/appellant as it was found, inter-alia, that the search warrant was issued in the name of the appellant as well as his one brother who were in the joint possession of the premises from which the recovery of the contraband substance was effected and the above brother of the appellant was not found prosecuted. In case of Mukhtiar Ahmad Ansari-Supra also the seizure of the arms and ammunition was effected from the accused/appellant only after a complaint was already made and the complainant had proceeded with the investigation resulting into the above seizure and also that some material witnesses have not supported the SC No. 05A/08 State Vs Rattan Singh & Ors.
30prosecution version. Even in case of Gurmit Singh-Supra it was found that the search was conducted at night without any proper authorisation and the identity of the case property seized in the case was under serious doubts.
(iii) In the instant case the seizure of the contraband substance was already effected by the IO/PW3 SI Balbir Singh prior to sending of the rukka resulting into the registration of this case and no further contraband substance was recovered in the investigation carried by him subsequent to the registration of the case and only the formal arrest of the accused persons were effected, the statements of witnesses were recorded and the other formalities of the case were completed. Hence, in the considered opinion of this court, in the given facts and circumstances of this case the accused persons are not found to had been prejudiced by the conduction of the further investigation by the initial IO/complainant SI Balbir Singh/PW3. Therefore, this argument of Ld. Defence Counsels can also not be made the basis of the acquittal of the accused persons.
PROOF BEYOND REASONABLE DOUBTS
(i) It has also been argued by Ld. Defence Counsels that the case of the prosecution has not been proved SC No. 05A/08 State Vs Rattan Singh & Ors.
31beyond reasonable doubts, but even this argument is found to be merit less and appears to have been raised merely for the sake of arguments. All the alleged discrepancies or lacunae being pointed out by Ld. Defence Counsels have been dealt with above and no material contradiction, infirmity or discrepancy has been observed by this court in the story of the prosecution. It is not that every doubt raised by the defence in the prosecution story has to result in the acquittal of the accused and to achieve that end the doubts being raised should be reasonable and acceptable by the court. It cannot be ignored that both the accused persons are facing trial in this court for serious offences U/S 20(b)(ii)(C) of the NDPS Act for possessing the commercial quantities of charas and the above offence carries a minimum punishment of rigorous imprisonment of 10 years and a fine of Rs. 1 Lac and the prosecution case cannot be discarded merely on the ground of some minor discrepancies or infirmities which are otherwise not affecting the credibility of the prosecution version as a whole. Hence, it can be said that this argument of Ld. Defence Counsels is also without any reasonable basis and cannot be accepted.
DEFENCE OF THE ACCUSED PERSONS
(i) The defence of both the accused persons in this case is that they have been falsely implicated in this SC No. 05A/08 State Vs Rattan Singh & Ors.
32case and the above charas was also planted upon them by the police. However, the above defence of the accused persons had remained unsubstantiated and is even found to be not consistent and is contradictory.
(ii) No specific suggestion has been given to any of the material witnesses of recovery giving any reason for the false implication of the accused Bilal nor any defence witness was examined by him on record. Though during the recording of his statement U/S 313 Cr.P.C. it was claimed by him that he was picked up by some police officials from the Okhla Subzi Mandi on 24.10.2007 at about 09.30 pm and was subsequently implicated in this case falsely, but there is no witness or evidence to corroborate the above submission. Even this specific suggestion was not given to all the prosecution witnesses during their cross examination.
(iii) Further, though it was suggested to PW4 ASI Ashok Kumar during his cross examination that the accused Rattan Singh was having a chicken corner at Katwaria Sarai and he was implicated in this case as he had refused to provide free chicken to the police officials, but no such suggestions were given to any other witness of recovery. Though in his statement U/S 313 Cr.P.C. also the accused Rattan Singh has made similar submissions, but as stated above, his defence is SC No. 05A/08 State Vs Rattan Singh & Ors.
33not found to be consistent. Even the depositions made by his sister Ms. Pinki Singh/DW1 are found to be not trustworthy and acceptable as it is found that on the alleged day of incident she was not even residing in Delhi and was in Kolkata and she had not filed on record any document to show that she had ever resided with his brother in Delhi or was present at the alleged chicken corner of his brother at any such time when the alleged threats were extended. Even no document in proof of the alleged chicken corner being run by the accused Rattan Singh at the alleged place has been filed on record. Hence, the plea of false defence being raised by the accused persons is also found to be not acceptable and had remained unsubstantiated.
17. There are consisting and corroborative depositions made on record by all the members of the raiding team regarding the apprehension of the accused persons on the above said date, time and place and the recovery of the above quantities of charas. Though some minor contradictions have been observed in their testimonies, but the same do not go to the root of the prosecution case and do not affect the credibility thereof as a whole. No acceptable reason has been brought on record for the false implication of the accused persons in this case.
SC No. 05A/08 State Vs Rattan Singh & Ors.
3418. As stated above, in the FSL report Ex. PA/1 the samples drawn from the above contraband substance recovered from the accused persons have been confirmed to be of charas. As per Article 23 of the Table given in the NDPS Act, a quantity of 100 Grams of charas is prescribed as a 'small quantity' and 1 kg to be a 'commercial quantity' and hence the quantities of charas found to be in possession of both the accused persons are commercial quantities of the above substance.
19. In view of the above discussion, it is held that the prosecution has successfully established the guilt of both the accused persons for the offence punishable U/S 20(b)(ii)(C) of the NDPS Act. Both the accused are accordingly convicted for the above said offence. Let they be heard on the quantum of sentence.
Announced in the open
court on 16.01.2012 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 05A/08 State Vs Rattan Singh & Ors.