Delhi District Court
State vs (1) Shaboo W/O. Mohd. Kesar on 19 January, 2015
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST), SPL. JUDGE (NDPS) KARKARDOOMA
COURTS, DELHI.
Unique ID No. 02402R0106412012
Sessions Case No. 52A/13
Date of Institution: 16.04.12
Date of transfer to this court: 29.07.13
Date on which reserved for orders: 19.12.14
Date of delivery of order: 05.01.15.
State v/s (1) Shaboo W/o. Mohd. Kesar
R/o. H.No.640, ABlock, Gali No.10,
Kachi Khajuri, PS. Khajuri, Delhi.
FIR No. 23/12
PS. Crime Branch
U/s. 21 NDPS Act
JUDGMENT:
1. The prosecution case is that on 29.01.12 at about 4 pm a secret informer came to narcotic cell and gave an information to SI Bhagwan Singh that one person namely Sabbo alongwith FIR No. 23/12, PS. Crime Branch Page 1 of 58 St. Vs. Shaboo her mother Anwari r/o Kachchi Khajoori, was indulged in supply of heroin and she was likely to come at Pusta Road, Geeta Colony Bus Stand between 5 pm to 5.30 pm for supply of heroin.
2. SI Bhagwan Singh produced the secret informer before Inspector Narcotic cell Vivek Pathak at 4.15 pm, who satisfied himself about the secret information and informed ACP/ N & CP Beer Singh through telephone. ACP Beer Singh directed raid and necessary legal action. SI Bhagwan Singh wrote down the information vide DD No. 10 in rojnamcha register at 4.30 pm. A copy of this DD Entry was produced before Inspector Narcotic cell for compliance of section 42 NDPS Act. SI Bhagwan Singh constituted a raiding party consisting of himself, W/HC Rani Reddy, and HC Mahesh Kumar. The raiding party alongwith secret informer left in Private vehicle no. HR 26 N 1582 driven by HC Kanwal Singh. The IO was carrying with him the IO Bag, field testing kit and electronic weighing machine. A DD entry FIR No. 23/12, PS. Crime Branch Page 2 of 58 St. Vs. Shaboo no.11 was made before departure at 4.45 pm. The raiding team went to spot via Pusta road, Geeta Colony and reached the spot at about 5 pm. On the way SI Bhagwan Singh requested 5 passerby outside the Police Station and 45 persons at the spot to join the raiding party however, all of them left without disclosing their names and addresses. When they reached the spot, SI Bhagwan singh directed the driver to park the vehicle at a distance of 50 meter and they all took their positions and started waiting. At about 5.10 pm one woman wearing a gray colour shawl was seen coming from the North side of the Bus Stand and was identified by the secret informer from a distance of 20 meter as Sabbo. Secret informer left the spot. The woman waited at the bus stand for some time and started to move after 5 minutes She was apprehended at 5.15 pm with the assistance of W/HC Rani Reddy. IO gave the introduction of raiding team. The person on enquiry told her name as Sabbo w/o. Mohammad Kesar r/o H.No. 640, A Block, Gali No.10, Kachchi Khajoori Delhi, age 27 years. SI Bhagwan told the secret information to FIR No. 23/12, PS. Crime Branch Page 3 of 58 St. Vs. Shaboo her and said that her cursory search was to be conducted by W/HC Rani Reddy and that she had legal right to get her search conducted in presence of a Gazetted Officer or Magistrate and she also had a right to search the vehicle and W/HC Rani Reddy before her search. A notice u/s 50 NDPS Act was given to the accused, who stated that she was not educated though literate and could sign only. Her refusal was recorded on the notice and she signed the same. SI Bhagwan Singh again requested 45 public persons to become part of raiding team but they left without disclosing their names and addresses. W/HC Rani Reddy conducted cursory search of accused inside the Pvt. Vehicle and from the right side of her wearing suit a transparent polythene tied with a rubber band containing matiala colour powder was recovered. The substance was tested on field testing kit and weighed on electronic weighing machine. It was found to be 270 gms of Heroin. Thereafter, two samples of 5 gms each were drawn. Two pullandas Mark A and B were prepared. Remaining Heroin was given mark C. FSL form was filled and pullandas FIR No. 23/12, PS. Crime Branch Page 4 of 58 St. Vs. Shaboo were sealed with seal of BS, which seal was also affixed on the FSL form and seal thereafter handed over to W/HC Rani Reddy. The pullandas were seized; rukka was prepared, proceedings u/s. 55 NDPS Act were also completed. The pullandas, rukka, FSL Form and copy of seizure memo were sent to PS. They were produced before Inspector C.R.Meena, who conducted his own proceedings and recorded DD No. 13. Pullandas and documents were deposited with MHC(M). Further investigation was handed over to SI Satyawan, who went at the spot; arrested the accused; prepared the site plan; got conducted personal search of accused through W/HC Rani Reddy and recorded her disclosure statement. Both the IOs prepared their reports u/s. 57 NDPS Act and submitted them with Inspector Narcotic Cell. Sample A was sent to FSL vide RC NO. 64/21 and as per FSL report the sample was found to be of 18.8 % of diacetylmorphine and 4.4.% of phenobarbital.
3. Accused was charged for being found in possession of FIR No. 23/12, PS. Crime Branch Page 5 of 58 St. Vs. Shaboo 270 gms Heroin and charge u/s. 21 (C) NDPS Act was framed against her. She pleaded not guilty and claimed trial.
4. The prosecution examined 10 witnesses in support of its case.
5. PW4 HC Chand Ram was the duty officer. He proved the registration of FIR No. 23/12 based on the rukka sent by SI Bhagwan Singh through HC Mahesh Kumar. The copy of FIR is Ex.PW4/A. He also made an endorsement on the rukka which is Ex.PW4/B. The registration of FIR was not challenged by the accused in crossexamination.
6. PW1 HC Jag Narain was MHC(M). He deposed that on 29.01.2012 he was posted in PS Crime branch as MHC(M). On that day he was called by Inspector C.R.Meena SHO Crime Branch through duty officer with register no. 19 to his office. SHO handed over three parcels duly sealed with the seal of BS FIR No. 23/12, PS. Crime Branch Page 6 of 58 St. Vs. Shaboo and CRM marked A, B and C, form FSL and carbon copy of seizure memo. SHO had put the FIR number on each pullanda and had signed the same. He made entry at serial no. 1193. The said entry is Ex.PW1/A. SHO lodged DD No. 13 regarding the proceedings around 10.30 pm. At about 2 am SI Satyawan produced personal search articles of accused, which were deposited in malkhana against entry no. 1194. On 07.02.12 on the directions of SHO he handed over parcel mark A duly sealed with seal of BS and CRM to Ct. Manjeet vide RC No. 64/21 alongwith FSL form for depositing the same at FSL Rohini. Copy of RC is Ex.PW1/C and copy of receipt given by FSL is Ex.PW1/D. On 16.05.12 result from FSL was received and he made an endorsement in this regard at point Y against serial no. 1193. In his crossexamination he admitted that time of deposit was not mentioned against any entry.
7. PW5 Ct. Manjeet has corroborated the evidence saying that he received one pullanda and FSL form having seals FIR No. 23/12, PS. Crime Branch Page 7 of 58 St. Vs. Shaboo of BS and CRM vide RC No. 64 and as per the directions of SHO he deposited the same in FSL Rohini. He had handed over the received copy to MHC(M). In his crossexamination the witness stated that he had not noticed if the pullandas or FSL form had thumb impression or signatures of accused.
8. PW7 is the reader to ACP N & CP. He deposed that on 29.01.2012 DD No. 10 was received in the office of ACP N & CP from Inspector Narcotic cell which was entered in diary register vide serial no. 200. The DD was put before ACP Beer Singh, who endorsed the same. He identified the handwriting and signature of ACP Beer Singh and produced the DD No.10 which was received in the office. The document is Ex.PW7/A. He further deposed that on 30.01.2012 two reports u/s. 57 NDPS Act were received in the office of ACP N & CP vide diary no. 201 & 202. Both were endorsed by ACP Beer Singh. The received copies are Ex. PW7/B and Ex.PW7/C. The original diary register containing entry no. 200, 201 & 202 was FIR No. 23/12, PS. Crime Branch Page 8 of 58 St. Vs. Shaboo produced. The copy was retained on record and is Ex.PW7/D. In his cross examination he admitted that column no. 6 in the diary did not have signatures of ACP.
9. PW8 Inspector Vivek Pathak deposed that on 29/01/12 at about 4.15 pm SI Bhagwan Singh had come to his office along with secret informer and told him that one woman by the name of Shabbo, who was resident of Kachchi Khajoori, in connivance with her mother Anwari, was indulged in supply of Heroin and was expected to bring heroin between 5 to 5.30 pm at Pusta Road, Geeta Colony, Near Bus Stand and could be apprehended, if raided. He deposed that after satisfying himself about the information, he conveyed the same to ACP N & CP Sh. Beer Singh on telephone, who directed necessary legal action. The witness further deposed that the information was recorded by SI Bhagwan Singh vide DD No. 10 (Ex. PW7/A) and he forwarded the same to ACP N & CP on 29/01/12 vide endorsement at point B. Thereafter, SI Bhagwan Singh along FIR No. 23/12, PS. Crime Branch Page 9 of 58 St. Vs. Shaboo with raiding team and secret informer left the PS. SI Bhagwan Singh took along with him, IO bag, field testing kit and electronic weighing machine and they all went by pvt. vehicle No. HR 26 N 1582 driven by HC Kanwal Singh, vide DD No.11.
He further deposed that SI Satyawan came to his office along with accused Shabbo at about 3.30 am on 30.01.12. He made inquires from accused regarding the facts of her arrest and satisfied himself. On the same day, SI Bhagwan Singh and SI Satyawan produced their special reports u/s. 57 NDPS Act, which he forwarded to ACP N & CP vide endorsement at point B (the documents are Ex. PW 7/B and C).
In his crossexamination he admitted that the informer did not tell the cloths of the accused or the description of the accused to him. He also stated that he was not told about the DD entry (regarding receiving of the documents) lodged at the ACP office.
10. PW10 Inspector CR. Meena deposed that on 29/01/12, FIR No. 23/12, PS. Crime Branch Page 10 of 58 St. Vs. Shaboo at about 9.50 pm HC Mahesh Kumar came to his office and handed over three pullandas mark A, B and C, one FSL form and carbon copy of seizure memo to him. All of above had one seal each of BS marked on them. He put his seal of CRM on each pullanda and FSL form and wrote FIR number after asking from the duty officer HC Chand Ram on all pullandas, FSL From and copy of seizure memo and also put his signatures on them. At around 10.10 pm, MHC(M) HC Jag Narayan was called by him in his office and the case property and documents were handed over to him, who made an entry in register no. 19. He deposed that he made DD No. 13 in this regard. The copy of DD No. 13 is Ex.10/A. He also proved his signatures on entry in register no.19 i.e Ex.PW1/A at point A1. On 07.02.12 MHC(M) gave sample A along with FSL form to Ct. Manjeet vide RC No. 64/21/12 for sending to FSL, on his direction.
In his crossexamination he admitted that time of deposit was not mentioned in the register no.19. He deposed that the delay of 9 days in sending the sample to FSL occurred due to FIR No. 23/12, PS. Crime Branch Page 11 of 58 St. Vs. Shaboo nonavailability of staff. In answer to specific question regarding the staff he answered that crime branch have different sections and staff is called from concerned section as per requirement.
11. PW 3 SI Satyawan deposed that on 29/01/12, around 10.30 pm on receiving of further investigation, he went to the spot by pvt. vehicle no. HR 26 N 1582 driven by HC Kanwal. He left vide departure entry no. 14 Ex.PW3/A. He reached the spot at about 10.45 pm where he met SI Bhagwan Singh along with accused and W/HC Rani Reddy. SI Bhagwan Singh handed over the documents prepared by him and custody of the accused to him. He prepared the site plan Ex. PW3/B and recorded the statement of W/HC Rani Reddy. He arrested accused Shabbo after brief interrogation vide memo Ex. PW3/C and got conducted her personal search through W/HC Rani Reddy vide memo Ex. PW 3/D and recorded her disclosure Ex. PW 3/E. From the personal search of the accused one carbon copy of the FIR No. 23/12, PS. Crime Branch Page 12 of 58 St. Vs. Shaboo notice u/s. 50 NDPS Act, cash Rs. 110/ were recovered. After completing the investigation they all returned to Crime Branch Nehru Place, where he deposited the personal search articles of the accused with MHC(M). He produced accused before Inspector Vivek Pathak. DD No. 2 recorded regarding the proceedings is Ex.PW3/F. He prepared the report u/s. 57 NDPS Act and submitted the same before Inspector Vivek Pathak. The office copy of the report is Ex.PW2/G having his signature at point A. He had filed the challan and also the FSL result Ex. PX, received later on.
The witness identified carbon copy of notice u/s. 50 NDPS Act in the name of accused Shabbo and said that the same was recovered from the personal search of the accused along with other articles. The copy of notice is Ex. PW 3/P1.
In his crossexamination the witness deposed that he did not call SHO/ACP or DCP at the spot after the arrest of the accused. He admitted that no public persons were joined in the investigation during the entire part of investigation conducted by FIR No. 23/12, PS. Crime Branch Page 13 of 58 St. Vs. Shaboo him.
12. PW2. HC Mahesh, PW6 W/ASI Rani Reddy and PW 9 Inspector Bhagwan Singh are the witnesses of recovery.
13. PW9 has deposed that on 29.01.12 at about 4 pm one secret informer came to Narcotics Cell and informed him that one woman namely Shabbo, who was resident of Kachchi Khajoori and used to supply Heroin alongwith her mother would come near the Pusta Road Geeta Colony East Bus Stand, between 5 5.30 pm to supply heroin to someone. He interrogated the informer and thereafter, produced him before Inspector Vivek Pathak at about 4.15 pm, who also satisfied himself and thereafter, conveyed the information to ACP N & CP Sh. Beer Singh on telephone, who directed to conduct raid. He recorded DD No.10 (Ex.PW9/A) and submitted true copy of the same to Inspector Vivek Pathak for forwarding to ACP. The forwarded copy is Ex.PW7/A. FIR No. 23/12, PS. Crime Branch Page 14 of 58 St. Vs. Shaboo PW2 HC Mahesh deposed that on 29.01.12 he was called by SI Bhagwan Singh (PW9) at about 4.40 pm, who prepared a raiding party consisting of himself, HC Mahesh Kumar and W/HC Rani Reddy. The fact has been corroborated by PW6 & PW9. Thereafter, PW2 deposed that SI Bhagwan Singh collected IO bag, field testing kit, electronic weighing scale and the raiding team alongwith secret informer went to East Bus stand, Geeta Colony, Pusta Road in the Pvt. vehicle no. HR 26 N 1582 driven by HC Kanwal Singh. DD No. 11 was prepared in this regard by SI Bhagwan Singh. He is corroborated by PW6 and PW9 on this aspect and all have said that the team with secret informer left at 4.45 pm vide DD No. 11, Ex.PW9/B. The witnesses deposed that on the way to the spot, the IO PW9 stopped after coming out of the PS Shakharpur and requested 45 persons to join the investigation, who all refused to oblige and left without disclosing their names and addresses. At the spot also IO had requested 45 public persons but none agreed to join the investigation. SI Bhagwan FIR No. 23/12, PS. Crime Branch Page 15 of 58 St. Vs. Shaboo Singh corroborated by PW2 & PW6 deposed that the raiding team reached at the spot at 5 pm, where the driver was asked by him to wait at a distance of 50 meters. After some time, one woman came, the secret informer pointed towards her from a distance of 25 meter, identifying her as Shabbo. As per witnesses the secret informer left after pointing out at the accused. The woman waited for five minutes and thereafter started to leave and at that time, she was apprehended with the assistance of PW6 W/HC Rani Reddy. The witnesses deposed that the IO disclosed his identity and identity of the raiding team members to the accused. The accused disclosed her name as Shabbo, who was identified by all the three witnesses in the court. IO told her regarding the secret information received by him and that her search was to be conducted. He also said that if she wanted her search could be conducted before a Gazetted Officer or a Magistrate. PW2 deposed that the accused was told her legal rights. PW9 deposed that he also offered search of W/HC Rani Reddy and search of the vehicle to the accused but FIR No. 23/12, PS. Crime Branch Page 16 of 58 St. Vs. Shaboo she refused. W/HC Rani Reddy has also stated that her search and search of vehicle was offered to the accused but she refused to avail the offer. Thereafter, PW9 prepared notice u/s. 50 NDPS Act, carbon copy of which was served upon accused Shabbo, which is Ex.PW3/P1. The original copy of notice is Ex.PW2/A. The accused refused to avail all the offers given by the IO and her refusal has been proved as Ex.PW2/B. The IO has deposed that he had explained to the accused the meaning of Gazetted Officer or Magistrate as she told that she was illiterate and after understanding the meaning and reading over the contents of notice to her, she told that she did not want to be searched in presence of Gazetted Officer or Magistrate. He deposed that he had noted down the reply and the same was read over to her, which she signed at point X on Ex.PW2/B. The witness has not been crossexamined on the aspect of service of notice, her refusal and her reply having been recorded by the IO as per her version.
PW9 deposed that after serving the notice he again FIR No. 23/12, PS. Crime Branch Page 17 of 58 St. Vs. Shaboo requested 45 public persons who had gathered at the spot due to curiosity but none joined the investigation and left showing their genuine grounds. He deposed that on his instruction W/HC Rani Reddy took the search of the accused inside the pvt. vehicle. After taking the search W/HC Rani Reddy produced one transparent polythene tied with rubber band containing matiala colour powder and told that the same was recovered from under right side of her wearing suit. The substance recovered was checked on field testing kit and was found to be heroin weighing 270 gms in all. The IO took out two samples of 5 gms each and prepared pullandas mark A & B and put the remaining heroin in pullanda mark C. He deposed that he filled the FSL form and put his seal of BS on all the pullandas and form FSL. Thereafter, he seized the pullandas and form FSL vide memo Ex.PW2/C. He deposed that he prepared the rukka Ex.PW9/C and had given the same alongwith the pullandas A, B & C, FSL Form and carbon copy of seizure memo to PW2 HC Mahesh Kumar with the direction to hand over the rukka to DO and remaining articles to FIR No. 23/12, PS. Crime Branch Page 18 of 58 St. Vs. Shaboo the SHO concerned.
14. PW2 has corroborated the evidence on recovery aspect and also handing over of pullandas and documents. He also deposed that after the accused refused to get searched in presence of Gazetted Officer or Magistrate, the IO had requested public persons to join investigation but they refused. He corroborated the evidence of IO on the fact of search conducted by W/HC Rani Reddy, who brought matiala colour powder after the search of accused.
15. PW6 W/ASI Rani Reddy has deposed in same terms as PW2 and PW9. She has specifically stated that after giving notice to the accused, IO had requested 45 public persons to join the recovery proceedings but they had refused and had left without disclosing their identity. She had searched the accused inside the vehicle and from right side breast of her wearing cloth a transparent polythene was recovered, which was containing FIR No. 23/12, PS. Crime Branch Page 19 of 58 St. Vs. Shaboo matiala colour powder. She had given the same to the IO and had told him that it was recovered from the search of the accused. No question whatsoever was put to the witness on the aspect of recovery. Her deposition regarding notice u/s. 50 NDPS Act was also not challenged. She stated in her cross that on seeing from outside it did not appear that accused was having any contraband with her. She said that the intimation of arrest of accused was given to Sanjida, who had come to PS in the morning of next date. She said that she had returned the seal to the IO after 89 days. She said that her statement was recorded from top to bottom at about 11 pm.
16. PW9 in his crossexamination stated that the information was not given to the family members of the accused on the spot. No question was put to him on when and where the same was given hence, version of ASI Rani Reddy that it was given in PS on the next date stands unrebutted. FIR No. 23/12, PS. Crime Branch Page 20 of 58 St. Vs. Shaboo
17. SA was recorded wherein the accused stated that she was lifted from her house between 2.30 to 3 pm. Nothing was recovered from her possession. She does not have any previous involvement in criminal and civil cases and in any court of law.
18. Accused led defence evidence and examined one Sanjeeda as DW1, who claimed to be real sister of accused. She deposed that police personnels in Civil dress had come to her house three years back and they took Shabbo for some enquiry. They also obtained her thumb impression on some documents. She deposed that she thought that Shabbo might have been taken for some enquiry pertaining to the case, which is pending in respect of her factory in relation whereto there was a dispute between her and her Karigars. When her sister did not come late till night she consulted her advocate. She stated that she did not make any complaint to any Sr. police officer or court, however, denied that she did not do so because she was informed about the arrest of her sister in a case of NDPS Act.
FIR No. 23/12, PS. Crime Branch Page 21 of 58 St. Vs. Shaboo
19. Ld. Addl. PP argued that secret information was received whereafter the senior officers were informed and information was also recorded in writing, DD regarding which has been proved without any dispute. The recovery witnesses have proved service of notice u/s. 50 NDPS Act and also the refusal of accused. The recovery and quantity have been proved by corroborative evidence of PW2, 6 & 9. The case property remained untempered and PW10 Inspector C.R.Meena has proved the receiving of sealed case property and other documents. The prosecution has proved its case with corroborative evidence on all the parts of investigation.
20. Ld. Counsel for accused argued that the accused is illiterate and could not read the contents of section 50 NDPS Act. He argued that section 50 & 42 were not complied with. No log book or receipt of petrol was filed to show the movement of vehicle. None of the recovery witnesses says that the secret FIR No. 23/12, PS. Crime Branch Page 22 of 58 St. Vs. Shaboo informer told about the dress and age of the accused. He says that arrest memo was prepared from top to bottom and it has the FIR no. mentioned on it, which shows that it was prepared at a later stage. There is a delay of 9 days in sending the sample to the FSL. The accused was picked from her house and thumb impression of her sister was taken at that time. PW6 W/HC Rani Reddy admitted in her evidence that sample was solid and not powder. Foot prints, soil etc. were not picked from the spot. No prior arrangement with any Gazetted Officer was made.
21. Ld. PP has argued in rebuttal that the accused has taken contradictory plea as she said that she was picked from her house in her SA while her sister said that she was picked from the house of sister. The accused gave a false statement in court that she had no civil or criminal case against her when in fact as per Parcha 12 there are two criminal cases against her being FIR No. 73/09, PS. Zafrabad and 301/10, PS. Gandhi Nagar and civil dispute pending in labour court has been disclosed by her sister FIR No. 23/12, PS. Crime Branch Page 23 of 58 St. Vs. Shaboo in her evidence. He argued that delay cannot be considered fatal for prosecution case unless the defence is able to point out any tempering with the sample. In this regard he relied upon the judgment of Hon'ble Supreme Court in Ajmer Singh Vs. State of Haryana 2010, (2) HCR 785 and Bilal Ahmed Vs. State 2011 III AD (Crl. ) (DHC) 293.
22. The main defence of accused is that section 50 NDPS Act was not duly complied with. It was argued that section 50 required strict compliance and mere information given to the accused did not serve the purpose. In support of his contention Ld. Counsel relied upon the judgment of Hon'ble Supreme Court in State of Delhi Vs. Ram Avtar, 2011 (III) CC Cases (SC)
172. In the said matter the notice given to the accused was that the IO had the information regarding possession of smack by the accused and if he (accused) wanted his search could be conducted in presence of Gazetted Officer or Magistrate. The FIR No. 23/12, PS. Crime Branch Page 24 of 58 St. Vs. Shaboo Hon'ble Supreme Court held that informing the accused that Gazetted Officer or Magistrate could be arranged for search could not be treated as communicating him that he had a right under the law. Similar were the facts in Rakesh @ Shankar Vs. State Crl. Appeal No. 663/2010 dt. 08.01.14 and Praveen Singh @ Kalia Vs. State of NCT of Delhi, 2011 (I) JCC Narcotics 1.
Coming to the facts of the present case all the three recovery witnesses have stated that accused was informed that she had a legal right to be searched in presence of a Gazetted Officer or a Magistrate and she was also told that she had a right to search W/HC Rani Reddy, who was likely to conduct her search. This oral evidence is in corroboration with the documentary evidence Ex.PW3/P1 and Ex.PW2/A i.e carbon copy of the notice and original notice u/s. 50 NDPS Act respectively. The notice reads that the accused was informed that there was an information that she alongwith her mother was indulged in wholesale and retail supply of heroin and that she FIR No. 23/12, PS. Crime Branch Page 25 of 58 St. Vs. Shaboo had come with heroin at the spot to supply someone. Her search was to be conducted by W/HC Rani Reddy inside the vehicle. She had a legal right that if she wanted she could be searched in presence of Gazetted Officer or Magistrate for which arrangement could be made and that she also had the right to conduct the search of W/HC Rani Reddy and the Pvt. Vehicle.
The contents of the notice are self explanatory that accused was told that she had a legal right to be searched in presence of Gazetted Officer or Magistrate and that an arrangement in this regard could be made. The judgment cited by Ld. Counsel is therefore, not applicable to the facts of the present case. There is absolutely no contradiction in the evidence of prosecution witnesses regarding the manner of service of notice U/s. 50 NDPS Act or regarding the information conveyed to the accused. There is no crossexamination of the witnesses regarding the contents of the notice or the manner of service thereof not even of the information provided to the accused regarding her legal right. The only question put in the cross FIR No. 23/12, PS. Crime Branch Page 26 of 58 St. Vs. Shaboo examination of PW9 is that the place where the notice was prepared is not mentioned in the notice. Nonmentioning of the place does not vitiate the service of notice when all the legal requirements are clearly stated therein.
23. Ld. Counsel argued that the accused was illiterate and the language of the reply to the notice u/s. 50 NDPS Act shows that the same could not be her language. The reply of the notice says that the accused had heard and understood her legal right and had also understood the meaning of Gazetted Officer and Magistrate and thereafter she had chosen not to get searched in presence of Gazetted Officer or Magistrate. It is settled law that each case has to be decided on its own facts.
Coming to the facts of the present case, the prosecution says that as per Parcha 12 the accused has been involved in two cases being FIR No.73/09, PS. Zafrabad & 301/10, PS. Gandhi Nagar and her own sister DW1 stated in her evidence that there was a case against her in relation to her factory between her and her Karigars. The accused thus, had been to the court in Civil as FIR No. 23/12, PS. Crime Branch Page 27 of 58 St. Vs. Shaboo well as Criminal cases. It is hard to believe that having faced three cases in the court over a period of 45 years, the accused would not have known or understood the meaning of Magistrate, even if she did not understand the meaning of Gazetted Officer. The facts of the case thus indicate that the accused in all probabilities knew what Magistrate meant and the language even if it is formal, the meaning thereof was not beyond the understanding of the accused.
Ld. Counsel had argued that the signatures of accused on Ex.PW2/A and Ex.PW2/B were in different ink. The record, however, does not reflect so.
24. It was next argued by Ld. Counsel that accused was picked from her house and not arrested from the spot as shown in the prosecution case. The accused, however, has not been able to prove her plea in as much as there is a contradiction coming out in the place of her suggested arrest in her statement u/s. 313 Cr.P.C and the statement of her sister given as DW1. The FIR No. 23/12, PS. Crime Branch Page 28 of 58 St. Vs. Shaboo accused claimed that she was arrested from her house while the sister said that accused was arrested from the sister's house. Additionally, the defence witness produced by her in support of her contention of arrest from the house of her sister (not from her own house as pleaded by her in her SA and suggested to the prosecution witnesses) is not reliable as she says that she did not lodge any complaint with any police officer or court. She claims that her sister was illegally picked and she had communicated this fact to her lawyer. She thus, had legal advice from the very beginning of the arrest, yet she chose not to file any complaint regarding unlawful picking/false implication, which creates a doubt on the veracity of her version.
25. Ld. Counsel has argued that there is delay of nine days in sending the sample to the FSL alleging that the delay being against the NCRB guidelines, should be read against the prosecution case. In support of his contention he relied upon the judgment of Hon'ble Delhi High Court in Matlub Vs. State, 67 FIR No. 23/12, PS. Crime Branch Page 29 of 58 St. Vs. Shaboo (1997) DLT 372, wherein the Hon'ble Delhi High Court held that the sample needs to be sent to FSL without delay and if the samples were dispatched with delay and no explanation was given, the tempering with the sample can be inferred.
To counter this argument Ld. Addl. PP relied upon the judgment of Hon'ble Supreme Court in Ajmer Singh Vs. State of Haryana, 2010 (2) SCR 785. In the said matter the Hon'ble Supreme Court upheld the order of Hon'ble Delhi High Court on the issue of ignoring the delay in sending the sample, the delay being of 15 days, and holding that the statements of witnesses and report of FSL shows that the sample was received in a sealed cover and there was no tempering of the sample. He also argued that in Ramesh Kumar Rajput @ Khan Vs. State of Nct of Delhi MANU/DE/0786/2008 and in Bilal Ahmed Vs. State 2011 III AD (Crl.) DHC 293, the delay of 13 days and 59 days respectively was ignored.
From the cited judgments the ratio which can be drawn FIR No. 23/12, PS. Crime Branch Page 30 of 58 St. Vs. Shaboo is that to safeguard the possible tempering, the sample should be sent to FSL at earliest preferably in 72 hours, however, if there is a delay there is an onus on the prosecution to show that there was no tempering with the case property and the sample. If the prosecution satisfies that there was no tempering, the delay is to be ignored, however, in the event of a doubt, the benefit has to be given to the accused.
26. Coming to the facts of the case, PW10 explained in his crossexamination that the 9 days delay in sending the sample to the FSL was on account of nonavailability of staff, which is not under his control. The accused has not been able to show that during the period of nine days any tempering was done with the sample. PW9 deposed that he prepared the pullandas A, B & C and affixed his seal of BS. He was not crossexamined on the aspect of seal at all. Thereafter, PW2 deposed that he took the sealed sample alongwith other articles/documents having seal of BS and gave them to SHO. Though, he was suggested that SHO FIR No. 23/12, PS. Crime Branch Page 31 of 58 St. Vs. Shaboo had not put his seal, no specific suggestion was given to him that the IO did not put his seal of BS on the samples after seizure. PW10 Inspector C.R.Meena deposed that he received the sample A and other articles having seal of BS in his office at 9.50 pm. He was not questioned on the issue of seal at all nor on the timing mentioned by him. Inspector C.R.Meena deposed that he called the MHC(M) and gave the sample etc. to him after putting his own seal of CRM, FIR No. and particulars of case on them. He was again not questioned on this aspect in his cross nor any suggestion was given to him that no such thing was done by him. PW1 corroborated PW10 and stated that he got sample Mark A etc. from Inspector C.R.Meena and they were having seals of BS and CRM. He also proved the relevant entries as also the DD made by SHO regarding the proceedings ( PW10/A) Apart from the fact that time was not mentioned against the entries no suggestion was given to this witness in his crossexamination. PW5 Ct. Manjeet Singh deposed that on 07.02.12 (date corroborated by PW1 and PW10) he was FIR No. 23/12, PS. Crime Branch Page 32 of 58 St. Vs. Shaboo handed over the pullanda having seals of BS and CRM alogwith RC no. 64/02 (02 being typographical error since 21 is the register no. which is mentioned so in the evidence of PW1 and PW10 also), which he took to the FSL and deposited. The RC having number 64/21 and the details has been proved by PW1 as Ex.PW1/C without any challenge. The acknowledgment card has also been tendered in evidence. FSL report says that sample having one seal of BS and one of CRM was received on 07.02.12. The link from the spot till the arrival of FSL has been proved by the prosecution by aforesaid five witnesses, who have not been crossexamined on the aspect of possible tempering at all. The delay therefore, cannot be read against the prosecution.
27. Ld. Counsel argued that the log book or receipt of petrol was not filed, the soil from the spot was not picked and the remnant of testing material were not saved. In every case there will always be something which shall remain undone, however, unless the things which are not done clearly establish the defence FIR No. 23/12, PS. Crime Branch Page 33 of 58 St. Vs. Shaboo of accused or point out towards falsity of prosecution case, they cannot be accepted as grounds for doubting the prosecution case. The arguments of Ld. Counsel that personal Car of IO was used in the conduct of the raid was addressed by Ld. Addl. PP, who stated that the police is provided contingency fund. There was as such no prohibition on Pvt. Vehicle being used for the conduct of the raid.
It was argued that no prior arrangement was made with the Gazetted Officer, it is a relevant fact that the office of ACP, who is Gazetted Officer was intimated about the secret information. Since it was only an information which could or could not have resulted into recovery and arrest, the prior arrangement having not been made cannot be accepted as a ground for acquittal. As argued by Ld. Addl. PP severals informations are received by the police officers during investigations, there cannot be a beforehand stock arrangement with Gazetted Officers or Magistrates unless the information is found true and correct.
FIR No. 23/12, PS. Crime Branch Page 34 of 58 St. Vs. Shaboo
28. The record reveals that due procedure was followed by the investigating officers. The secret information itself was recorded and communicated to the ACP. The DD entry as well as copy, which was sent to the ACP and produced before him, have been proved by the corroborative evidence of PW7, 8 & PW9. Ld. Counsel argued that section 42 has not been complied with, however, he could not point out any lacuna in the compliance. PW9 deposed that he recorded the DD no.10 and gave a copy thereof to PW8 Inspector Vivek Pathak, who deposed that the copy was in fact prepared and produced before him and was sent by him to the ACP N & CP on same date vide endorsement at point A. PW 7 reader of ACP N & CP has proved the received DD entry which was received at the office on 29.01.12 itself vide entry at Serial no. 200 Ex.PW7/D. The prosecution has also proved that after the arrest of accused a report regarding seizure as well as arrest was prepared by both the respective IOs and that the documents were sent to ACP N & FIR No. 23/12, PS. Crime Branch Page 35 of 58 St. Vs. Shaboo CP through Inspector Vivek Pathak. The preparation and sending of DD has not been challenged by the accused in the crossexamination of PW9 at all. PW8 was also not questioned regarding forwarding of the DD to ACP office, though both these witnesses were asked about the DD vide which the DD No.10 was received at the ACP office. None of the witnesses has deposed that any DD was recorded in the ACP office, which seems bonafide since the communication was received by Dak and was entered in the dak register duly proved in the evidence. The crossexamination of reader was also regarding the time only and the date was not challenged. The documents were received at ACP office within 24 hours thus stands admitted.
29. The prosecution has proved notice u/s. 50 NDPS Act. The notice is written in Hindi and it is stated that the same was read over to the accused. The objections thereto have been dealt with in detail hereinabove.
FIR No. 23/12, PS. Crime Branch Page 36 of 58 St. Vs. Shaboo
30. Three prosecution witnesses with their corroborated evidence have proved that they had gone in the private vehicle alongwith driver and secret informer to the spot and had waited for the accused before she arrived and was pointed at by the secret informer. The accused was apprehended within five minutes. The prosecution has proved through the evidence of three witnesses that a notice u/s.50 NDPS Act was given to the accused who was explained that she had legal right to get searched in presence of Gazetted officer of Magistrate. She was also informed about the secret information which the IO had with him. She also understood the meaning of Gazetted Officer and Magistrate. The fact is also written in the reply to notice which is Ex.PW2/B. The accused had refused to search W/HC Rani Reddy, who was to conduct her raid and the police vehicle as has been deposed by PW2, 6 & 9 and is also written in the notice Ex.PW2/A. After her refusal, which was also recorded in Hindi as per her version and was signed by her, the cursory search of accused was taken by W/HC Rani Reddy. The FIR No. 23/12, PS. Crime Branch Page 37 of 58 St. Vs. Shaboo witnesses have deposed that W/HC Rani Reddy after taking the search of the accused produced a transparent polythene containing matiala colour powder and stated that it was recovered from the possession of accused. W HC Rani Reddy specifically told that the recovery was made from the right side breast under the cloths of the accused. The witnesses have deposed that the substance was checked with the help of field testing kit and was found to be Heroin. All the witnesses have corroborated each other on this aspect and the fact was not challenged in crossexamination of PW2, PW6 & PW9 at all. The witnesses categorically stated that the case property was weighed and total quantity was found to be 270 gm. The prosecution has thus successfully proved that 270 gm of Heroin was recovered from the person of the accused, which Heroin was tested by the field testing kit at the spot itself. Thereafter, the recovery witnesses have deposed about the drawing of the samples and preparation of pullandas. The witnesses have again not been crossexamined on this aspect except for one question FIR No. 23/12, PS. Crime Branch Page 38 of 58 St. Vs. Shaboo put to them that the remnants of tested material was not saved. How the same would have helped the defence was not explained since charge is framed not on the basis of the field testing but on the basis of FSL result. And if the defence pleads false implication, how difficult it would have been for the IO to have planted the testing material, if he were already planting the case property. The argument of the defence has no merit. The witnesses have proved that two samples were drawn and put in pullandas Mark A & B and seal of BS was put on Mark A, B and the remaining Heroin was put in pullanda mark C. FSL form was filled and seal of BS was put on it also.
Inspector C.R.Meena has also deposed that pullandas A, B & C, FSL form when produced before him had the seal of BS on them and he had put his seal of CRM on each of the pullandas as well as FSL form. PW2 corroborated the evidence of Inspector C.R.Meena and stated that he was handed over pullandas and FSL form as also the carbon copy of seizure memo and that the pullandas and form FSL had seals of BS and FIR No. 23/12, PS. Crime Branch Page 39 of 58 St. Vs. Shaboo CRM on them. It is thus proved that the samples and case property sealed by SI Bhagwan Singh had reached the malkhana on 29.01.12 at 9:50 PM with intact seals. The reaching of sample to the FSL has been discussed hereinabove while discussing the aspect of delay in sending the sample. It thus stands proved that the seals were intact and were tallied with specimen till it reached FSL and the opinion on the sample given by FSL was that the sample contained 18.8 % of diacetylmorphine and 4.4.% of phenobarbital. On the aspect of sample being solid, the solidification is a process depending upon the absorption of moisture. No question was put on the colour of sample and the case property being different.
31. Admittedly, none of the witnesses stated that no woman from public was asked to join the investigation. However, discarding the prosecution case on this fact alone would be like presuming that though the men refused to join the raiding team; women if they were asked to do so, would have FIR No. 23/12, PS. Crime Branch Page 40 of 58 St. Vs. Shaboo joined the proceedings. The effect of non joining public persons shall be discussed in general.
It is settled law that nonjoining of public witnesses itself cannot become a ground for acquittal if the case of prosecution is otherwise not doubtful. I am placing my reliance upon the judgment of Hon'ble Supreme Court, in Ramesh & Anr Vs State of UP AIR 2009 SC 2741, wherein it was held that if the public witnesses do not become available, it is not the fault of the investigating agency.
In Sumit Tomar Vs State of Punjab Criminal Appeal no 16901691 of 2012 decided on 19/10/2012 it was held:
"In a case of this nature, it is better if the prosecution examines atleast one independent witness to corroborate its case. However, in the absence of any animosity between the accused and the official witnesses, there is nothing FIR No. 23/12, PS. Crime Branch Page 41 of 58 St. Vs. Shaboo wrong in relying on their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also do not find any infirmity in the prosecution case.
In view of the above discussion, we hold that though this is desirable to examine independent witness, , however, in absence of any such witness, if the statements of police officers are reliable and when there is no animosity established against them by the accused, conviction based on their statement cannot be faulted with."
In Rohtas versus State of Haryana JT 2013 (8)SC 181, the Hon'ble Supreme Court again held:
FIR No. 23/12, PS. Crime Branch Page 42 of 58 St. Vs. Shaboo " where all the witnesses are from the police department. Their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force, and are either interested in the investigating or the prosecuting agency from the victim and the vigilante."
In Gian Chand Vs. State of Haryana Criminal Appeal no 2302 of 2010 dated 23/07/2013 it was held that mere non joining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, credit worthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants.
32. In view of the cited judgments and above discussion FIR No. 23/12, PS. Crime Branch Page 43 of 58 St. Vs. Shaboo since the accused has not taken any plea of animosity and has not stated why the police officials would have falsely implicated her, nonjoining of public witnesses does not become a ground for acquittal of the accused since the case of the prosecution is otherwise proved on all material aspects.
33. There is no reason to disbelieve the prosecution case, which has been proved as per law against accused Sabbo. Accused Shaboo is held guilty for having committed the offence u/s. 21 (c) of NDPS Act. Let accused Shaboo be heard on the point of sentence.
Announced in the open court on 05.01.15 (ANURADHA SHUKLA BHARDWAJ) ASJ02, (EAST) KKD COURTS/DELHI/ 05.01.15 FIR No. 23/12, PS. Crime Branch Page 44 of 58 St. Vs. Shaboo IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ ASJ02 (EAST), SPL. JUDGE (NDPS) KARKARDOOMA COURTS, DELHI.
Unique ID No. 02402R0106412012
Sessions Case No. 52A/13
State v/s (1) Shaboo W/o. Mohd. Kesar
R/o. H.No.640, ABlock, Gali No.10,
Kachi Khajuri, PS. Khajuri, Delhi.
FIR No. 23/12
PS. Crime Branch
U/s. 21 NDPS Act
Pr: Sh. Ajit Kumar Sriwastawa, Ld. Addl. PP for the State.
Convict Shaboo produced from JC.
Sh. G.S.Singh, Ld. Counsel for convict.
ORDER ON SENTENCE:
1. Accused Shaboo has been convicted by order/judgment FIR No. 23/12, PS. Crime Branch Page 45 of 58 St. Vs. Shaboo of this court dt. 05.01.15.
2. Arguments were heard on point of sentence.
3. Ld. Counsel for the convict has argued that convict is having responsibility of her family consisting of children and blind mother. Ld. Counsel has requested for taking a lenient view on the ground that convict has suffered the ordeal of trial as she is in custody since the day of her arrest. He prays that she be sentenced for the period of custody, for which she has already remained in JC. He has relied upon the judgment in 2001 I AD Crime SC 390 Vajja Srinivasu Vs. State of Andhra Pradesh. In the said matter the conviction was under section 20 (b) (1). Similarly in 2015 1 AD (Crime) (SC) 8 Mukesh Kumar Vs. State of M.P, also the concerned accused was convicted for noncommercial quantity. In the present case the accused has been convicted of being found in possession of commercial quantity of Heroin. Ld. Counsel has relied upon the judgment in 2007 II AD (Crime) (DHC) 51 wherein the accused was found in possession of 3.22 gms of heroin FIR No. 23/12, PS. Crime Branch Page 46 of 58 St. Vs. Shaboo and was convicted for noncommercial quantity after considering the percentage of Diacetyl morphine. The fact of the matter is that the law as was applicable in 2007 stands amened as on date.
4. The cited judgment relates to the offence committed prior to the Gazette notification of the Government doing away with the requirement of mentioning the percentage of the banned chemical in the sample. Prior to 2001, in cases pertaining to drug user, the Supreme Court took into account the actual drug content in calculating quantity of seized material [Hussain versus State of Kerala (2000)8SCC139; Ouseph Vs State of Kerala (2004) 4SCC446]. In 2001 amendment was brought into the Act specifying the quantities of contraband thus making out the difference in the consumer, pedestal, carrier and commercial involvement. After 2001 amendment penalties were determined by the quantity of drugs involved.
In Basheer versus State of Kerala 2004 CriLJ 1418, Hon'ble Supreme Court observed as under :
FIR No. 23/12, PS. Crime Branch Page 47 of 58 St. Vs. Shaboo " As a consequence of the amending Act coming into force on 2/10/2001, the sentencing structure underwent a drastic change. The Act introduced the concept of 'commercial quantity' in relation to narcotic drugs or psychotropic substances by adding clause (viia) in section 2, which defines this term as any quantity greater than a quantity specified by the Central Government by notification in the Official Gazette. Further the expression small quantity is defined in section 2, clause (xxiii a), as any quantity lesser than the quantity specified in the notification. Under the rationalised sentencing structure, the punishment would vary depending on whether the quantity of offending material was ' small quantity, ' commercial quantity' or something in FIR No. 23/12, PS. Crime Branch Page 48 of 58 St. Vs. Shaboo between. This is the effect of the rationalization of sentencing structure carried out by the Amending Act 9 of 2011 in section 27. A notification was issued on 09.10.01 specifying in respect of 239 Narcotics Drugs and Psychotropic substances, as to what would be small quantity and commercial quantity.
Thereafter the Hon'ble Supreme Court of India in E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau in 2008 (2) ACR 2204 (SC), AIR 2008 SC 1720, 2008 Cri LJ 2250,LR 2008 (2) Kerala 153, 2008 (4) SCALE 592, (2008) 5SCC161 laid down the procedure for determining the quantity of drug in the mixed contraband. It was held as under :
"It appears from the statement of Objects and Reasons of the Amending Act of 2001 that the intention of the legislature was to FIR No. 23/12, PS. Crime Branch Page 49 of 58 St. Vs. Shaboo rationalize the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, we find it difficult to accept the argument advanced on behalf of the respondent that the rate of purity is irrelevant since any preparation which is more than the commercial quantity of 250 gm, an d contains 0.2% of heroin or more would be punishable under Section 21 (c) of the NDPS Act, because the intention of the legislature as it appears to us is to levy FIR No. 23/12, PS. Crime Branch Page 50 of 58 St. Vs. Shaboo punishment based on the content of the offending drug in the mixture and not on the weight of the mixture as such. This may be tested on the following rationale. Supposing 4 gms of heroin is recovered from an accused, it would amount to a small quantity, but when the same 4 gms. Is mixed with 50 kgs of the powered sugar, it would be quantified as a commercial quantity. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance/s, the quantity of the neutral substance /s is not to be taken into consideration while determining the small quantity or commercial quantity of a Narcotic drug or psychotropic substance. It is the only actual content by weight of the Narcotic drug which is relevant for the FIR No. 23/12, PS. Crime Branch Page 51 of 58 St. Vs. Shaboo purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment as it appear to us is to punish the people who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment. The Hon'ble Court held that :
"We are of the view that when any narcotic drug or psychotropic substance is found mixed with one or more neutral substances, for the purpose of imposition of punishment it is the content of the narcotic drug or psychotropic substance which shall be taken into consideration."
FIR No. 23/12, PS. Crime Branch Page 52 of 58 St. Vs. Shaboo The aforesaid judgment in E. Micheal Raj Vs. Intelligence Officer, /arcotic Control Bureau was followed by the Hon'ble Supreme Court in State of NCT of Delhi Vs Ashif Khan @ Kalu 2009 (1)ACR 990 (SC), AIR 2009 SC 1977, JT 2009 (3) SC 275, 2009 (3) SCALE 429 and several other cases to conclude that the quantity of the narcotic substance shall be decided on the basis of percentage of the contraband found in the sample.
Hon'ble Delhi High Court in Ansar Ahmed Vs. State ( Govt. of NCT of Delhi) 123 (2005) DLT 563 relying upon Bashir (Supra) held : "I, reiterate that in a mixture of a narcotic drug or a psychotropic substance with one or more neutral substances, the quantity of the neutral substance or substance is not to be taken while considering whether a small quantity or a commercial quantity of the narcotic drug or psychotropic substance is recovered . Only the actual content by FIR No. 23/12, PS. Crime Branch Page 53 of 58 St. Vs. Shaboo weight of the narcotic drug of the psychotropic substance ( as the case may be) is relevant for determining whether it would constitute a 'small quantity' or a ' commercial quantity' "
However the government brought into a notification, which was brought in 2009. The S.O. No 2941 (E) dated 18/11/2009 in its clause 4 stated :
" 4. The quantities shown in Column 5 & Column 6 of table relating to respective drugs shown in column 2 shall apply to the entire mixture or any solution or any one or more narcotic drug or psychotropic substance of that particular drug in dosage form or isomer, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers wherever existence of such substance is possible and not just its pure FIR No. 23/12, PS. Crime Branch Page 54 of 58 St. Vs. Shaboo content"
Thus, prior to the coming into force of Gazette Notification no 2941 (E)/ 18 Nov. 2009, the law of the land as decided by various judgments of Hon'ble Supreme Court and Hon'ble High Court was that the actual quantity of the drug was to be computed on the basis of percentage of offending material found in the sample of the whole recovered contraband. However, after the coming into force of the notification, the entire quantity of the contraband is to be considered irrespective of the quantity of contraband in the mixture in which the said contraband is found. Under these circumstances, the judgment cited by Ld. Counsel is not applicable to the facts of the case as per law applicable today. The accused in any case has been convicted for commercial quantity.
5. Ld. APP prays for imposition of severe punishment as such kind of offences are on the rise in the society. He has argued that recovery effected from convict falls within the commercial FIR No. 23/12, PS. Crime Branch Page 55 of 58 St. Vs. Shaboo quantity.
Hon'ble Supreme Court in Sevaka Perianal etc. Vs. State of Tamil Nadu (1991 (3) SCC 471) held that it is the duty of every court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed etc. Hon'ble Supreme Court in 2008 X AD (SC) 645 Siriya @ Shrilal Vs. State of MP, held that " Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. In each case there should be proper balance of aggravating and mitigating circumstances in a disappropriate manner. "
6. Keeping in view the facts and circumstances of the case, since the commercial quantity of heroin has been recovered from the possession of the convict, she cannot be convicted for anything less than the minimum prescribed punishment for the offence. and also considering the fact that too much leniency in sentencing will FIR No. 23/12, PS. Crime Branch Page 56 of 58 St. Vs. Shaboo not have the deterrent effect on the convict, I am of the opinion that the ends of justice would be subserved if the convict is sentenced to undergo Rigorous Imprisonment for a period of 10 years u/s. 21 (C) of NDPS Act and also directed to pay a fine of Rs.1,00,000/ in default of payment of fine, she shall undergo SI for one year.
7. The period of detention already undergone by her during investigation, inquiry or trial may be set off against the sentence awarded in this case, in view of section 428 Cr.PC.
8. A copy of this order as well as of judgment be given to convict free of cost. Copy be also sent to Jail Superintendent for information and necessary action.
Announced in the open
court on 19.01.15
(ANURADHA SHUKLA
FIR No. 23/12, PS. Crime Branch Page 57 of 58 St. Vs. Shaboo
BHARDWAJ) ASJ02, (EAST)
KKD COURTS/DELHI
19.01.15
FIR No. 23/12, PS. Crime Branch Page 58 of 58 St. Vs. Shaboo