Delhi District Court
State vs . 1 Rambir Prasad Chaurasia on 16 April, 2010
IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE - NDPS
PATIALA HOUSE COURTS : NEW DELHI
Date of Institution: 08/05/2008
Judgment reserved on: N.A.
Date of pronouncement: 16/4/2010
SC No. 42/08
ID No. 02403R0574602008
FIR No. 17/08
P.S. Nr. Branch
U/s. 20/29 NDPS Act
State Vs. 1 Rambir Prasad Chaurasia
S/o Baijnath Chaurasia
R/o. village Nagua, Distt. Persa Beerganj,
Nepal.
2 Ganesh Chaurasia
S/o Shiv Chander Chaurasia
R/o. H.No. 208, Jaitpur Gaddha Colony,
PS Sarita Vihar.
JUDGMENT
1. Prosecution case in brief is that on 17/2/2008 at about 6:20 p.m. a secret information was received by SI Satyawan that one Rambir Prasad Chaurasia r/o Nepal involved in supplying of charas in Delhi would come alongwith his relative Ganesh in front of Badarpur in between 7:308:30 a.m. to supply charas. This information was conveyed to the SHO who passed it on to ACP Sh. Mahender Singh Dabas who directed to conduct raid.
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SI Satyawan constituted a raiding party comprising of himself, HC Ramesh, Ct. Sohanpal, Ct.Joginder and Ct. Yogesh. They alongwith the secret informer left the Police Station in a government vehicle no. DL1CH 0617. He requested some persons to join the raiding party but none agreed. At about 7:30 a.m. both the accused came from the side of Jaitpur village. On the pointing of the informer, they were apprehended. They revealed their names as Rambir Prasad and Ganesh Chaurasia. They were told about the information. Notices u/s 50 NDPS Act were served upon them apprising of their legal right to be searched before a Gazetted Officer or a Magistrate on which they got recorded their refusal. From the search of accused Rambir Chaurasia, a green colour bag on his left shoulder was recovered. From the bag one yellow colour bed sheet containing five full slabs (500 grams each) one half slab (300 grams) of black colour substance were recovered. The substance was checked on field testing kit which gave positive for charas total weighing 2.800 kg. 10 grams charas from each slab (total 60 grams) was separated as sample. Remaining charas was kept in the bag. The samples and the case property were sealed with the seal of 7 BPS NB Delhi. From the search of accused Ganesh Chaurasia, no incriminating substance was recovered . Form FSL was prepared on the spot on which same seal impression was put.
Rukka along with the case property was sent to the Police Station through Ct. Joginder Singh. He handed over the rukka to the 2 duty officer. He produced the case property before the SHO who put his seal of 1 SHO NBR DELHI, called Moharrar Malkhana with register number 19 and got it entered. Further investigation was conducted by SI Sunil Jain. He prepared the site plan and arrested the accused persons. From the search of accused, copy of notice u/s 50 NDPS Act were recovered. The sample was sent to the FSL for analysis. As per the report, the sample was found found to be charas. After investigation, they were sent for trial for offence punishable u/s 20/29 NDPS Act.
2. On their appearance, after complying with the requirements contemplated under section 207 Cr.P.C and hearing arguments, prima facie case was made out and the charge was framed against the both the accused under section 20 r.w.s. 29 of NDPS Act. Accused Rambir Prasad Chaurasia was also charged u/s 20 NDPS Act. They pleaded not guilty and claimed trial.
3. To substantiate its allegations against the accused, prosecution examined as many as four witnesses.
4. PW1 Ct. Joginder Singh was the member of raiding party. He had taken the rukka as well as the case property to the Police Station. He identified the case property ExP1 to ExP4. PW2 SI Sunil Jain did the investigation after registration of the case. He had prepared the site 3 plan ExPW2/A, arrested the accused persons vide arrest memo ExPW2/B and ExPW2/E, recorded their disclosure statements ExPW2/C and ExPW2/G and prepared the arrest report u/s 57 NDPS Act. PW3 HC Ramesh had witnessed the recovery proceedings. He had received the seal after use. PW4 HC Karunakaran had brought the reports ExPW4/A and ExPW4/B u/s 57 NDPS Act qua seizure of charas and arrest of both the accused which were initialed by DCP. PW5 HC Vijaypal was the MHCM with whom the case property and the personal search of the accused was deposited. He had handed over the sample mark A to HC Jaivir, received the remnant samples and collected report.
5. The accused were examined u/s 313 Cr.P.C. wherein they pleaded guilty.
6. I have heard the arguments advanced by Ld. APP for the State and Ld. counsel Sh. J.S. Khushwaha and perused the file.
7. The accused have been charged u/s. 20 and 29 of the NDPS Act. Section 20 reads as whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder Produces, manufactures, possesses, sells, purchases, transports, imports interState, exports interState or uses cannabis shall be punished....
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Section 29 provides punishment for abetment and criminal conspiracy. A person abets the doing of a thing, who engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to doing of that thing. Criminal conspiracy is defined u/s. 120A Indian Penal Code which reads as "when two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.
8. In the instant case PW1 has stated that SI Satywan had received the information that the accused Ram Prasad Chaurasia r/o Nepal who used to supply charas in Delhi would come in front of Badarpur PS Jaitpur in between 7:30 to 8:30 a.m. along with his relative Ganesh for supplying the charas. He stated that he along with SI, members of the raiding party and the informer went there where at about 7:30 a.m. the accused were pointed out by the secret informer who came from the side of Jaitpur village. He stated that the accused were apprehended and were told about the information. They were issued notices u/s 50 NDSP Act ExPW1/A and ExPW1/C on which they recorded their refusal vide ExPW1/B and ExPW1/D. He stated that some public persons were also requested to join but none agreed. He stated that from the search of the accused Rambir, a green colour bag on his 5 shoulder ExP1 was recovered which on checking was found to contain 6 slabs of black colour substance total weighing 6.800 kg. He stated that from each of the slab 10 gram was taken as sample. The samples and the case property were sealed with the seal of 7 BPS NB Delhi. Form FSL was filled at the spot and the seal after use was given to HC Ramesh. He proved the seizure proceedings ExPW1/E and stated that he had taken the rukka to the Police Station which he handed over to duty officer. He stated that he had also taken with him the sealed pullandas, FSL forms, copy of the seizure memo which he produced before the SHO who put his seal of 1 SHO NBR Delhi, called the MHCM HC Vijay Pal and got it deposited in the malkhana. He stated that the entry was also made to this effect and one DD no.12A was recorded. He identified the case property and the sample ExP1 to ExP4 correctly.
9. PW2 SI Sunil Jain stated that after the enturstment of investigation he had prepared the site plan and arrested the accused. He stated that the copy of the notice u/s 50 NDPS Act was recovered from his personal search. He had produced the accused before the SHO and submitted his report u/s 57 NDPS Act. He has stated that he had got the sample sent to FSL Rohini, through HC Jaibir. PW3 corroborated the testimony of PW1 on each and every material point and correctly identified the case property. PW4 has proved the receipt of the reports of seizure and arrest ExPW4/A and ExPW4/B u/s 57 NDPS Act in the office 6 of ACP /DCP which were entered vide ExPW4/C. The report of FSL and CRCL is admissible in evidence u/s 293 Cr.P.C. It is relevant to mention that initially the THC was not got determined but later, on the application fresh sample was drawn from the case property and sent to CRCL as per which the percentage of THC came to 2.31%.
In the case of Union of India vs. Mohd. Yonus Vs. CBI - 2008 (1) JCC (Narcotic) 33, it was held that THC content is a basic factor of actual quantity to Charas. It was cases of recovery of 11 kg. of Charas but considering the THC content, it was not treated as commercial quantity. The THC content was ascertained from hashish /charas to verify whether it comes under commercial quantity or less than commercial quantity. (Also see Union of India vs. Stephen Andreas Hofman 2007 VII AD (Delhi) 486).
10. Drawing the analogy from the case supra after ascertaining the THC, the actual recovery comes to 64.68 grams of charas which is a small quantity.
11. In the instant case both the accused had come together. The bag was found in possession of Rambir Prasad Chaurasia which had contraband. Information was qua both the accused that they were involved in the business of trafficking of charas. In a case of criminal conspiracy or abetting, the direct evidence is seldom available. 7 Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution often relies on evidence of acts of various parties to infer that they were done in reference to their common intention. The conspiracy can undoubtedly be proved by such circumstantial evidence. In the case of Eran Eliav V. State 2008 Drugs Cases (Narcotics) 98 it was observed - Both abetment and criminal conspiracy are fiendishly difficult to establish by virtue of direct evidence, it can be established by indirect or circumstantial evidence which is of an impeccable nature.
12. In this case accused failed to rebut the two statutory presumptions in favour of the prosecution u/s 35 and 54 of the Act. In the case of Madan Lal v. State of HP 2003 (3) JCC 1330 it was held that once possession is established, the person who claims that it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge. Section 35 of the Act is given a statutory recognition of this position because of presumption available in law and similar is the position in terms of Section 54 where also presumption is available to be drawn for possession of illicit articles.
13. In the light of above discussions, I am of the considered opinion that prosecution has succeeded in proving its case against the accused beyond reasonable doubt. Further both the accused pleaded 8 guilty. I therefore convict both the accused Rambir Prasad Chaurasia and Ganesh Chaurasia of the offence punishable u/s 20 (b) (ii) (A) r.w.s 29 of the NDPS Act.
Announced in open Court Sanjiv Jain
th
on this 16 day of April, 2010 Special Judge NDPS : New Delhi
Patiala House : New Delhi
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IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE NDPS PATIALA HOUSE COURTS : NEW DELHI FIR No. 17/08 P.S. Nr. Branch U/s. 20/29 NDPS Act State Vs. Rambir Prasad Chaurasia and Another ORDER ON SENTENCE
1. Vide separate judgement accused Rambir Prasad Chaurasia and Ganesh Chaurasia have been convicted of the offence punishable u/s 20 (b) (ii) (A) r.w.s 29 of the NDPS Act.
2. Ld. APP for state has prayed for maximum sentence provided under the statute and submitted that the sentence should be proportionate to the gravity of the offence.
3. Ld. Counsels submitted that the accused are poor persons and do not have any record of previous conviction. They be given opportunity to reform and rehablitate.
4. I have considered the submissions.
The Hon'ble Supreme Court in the case of Union of India Vs. Kuldeep Singh 2004 Vol. 2 SCC 590 held :
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Imposition of sentence without considering its effect on the social order in many cases may be unreally a futile exercise. The social impact of the crime e.g. Where it relates to offences relating to narcotics drugs or psychotropic substance, which have great impact not only on the health fabric but also on the social order and public interest, cannot be lost sight of and per se requires exemplary treatment. Any liberal attitude by imposing meager sentences of taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of such offence will be result wise counter productive in the long run and against social interest which needs to be cared for and strengthened by a string of difference inbuilt in the sentencing system. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
5. In the present case, the convicts are involved in the case trafficking of charas. The effect of consumption of charas on the society is disastrous. It eats away the life and vigour in the society. Illegal trade of such a high quantity would have adverse impact on the lives of uncountable persons.
6. The incident pertains to the year 2008. The Convict Rambir Prasad Chaurasia is aged about 44 years, has four children and does 11 not have any case against him under NDPS Act. He is in custody from the date of his arrest. Accused Ganesh Chaurasia is also in custody from the date of his arrest. He is aged about 27 years and has one child. He does not have any other case under NDPS Act. I am of the view that they have received enough punishment for doing the wrong. I am not inclined to further incarcerate them.
7. Taking into consideration the totality of facts and the circumstances, antecedents and family background of the convicts, I sentence the convict Rambir Prasad Chaurasia and Ganesh Chaurasia to undergo rigorous imprisonment for the period of six months and to pay fine of Rs.10,000/ each in default thereof to undergo simple imprisonment of three months for offence punishable 20 (b) (ii) (A) r.w.s 29 of the NDPS Act.
8. They are given benefit of section 428 Cr.P.C. The case property be confiscated to the state after expiry of period of appeal or revision.
File be consigned to Record Room.
Announced in open Court Sanjiv Jain
th
on this 16 day of April, 2010 Special Judge NDPS : New Delhi
Patiala House : New Delhi
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