Delhi District Court
To Decision In State Of Punjab vs . Baldev Singh & Ors, Iii (1993) Ccr 109 on 13 April, 2012
IN THE COURT OF SH. NARINDER KUMAR
SPECIAL JUDGE (NDPS) : DELHI
SC No.11/09
FIR No.03/2009
PS Narcotics Branch
U/s 21 of Narcotics Drugs and Psychotropic Substances Act
In the matter of:
State
Versus
Smt. Sumitra @ Bumpal
W/o Late Sh. Fateh Chand
R/o H. No.1836, 52 Quarter Motia Khan,
Delhi. .......Accused
Date of Institution: 21.02.2009
Date of Judgment : 13.04.2012
J U D G M E N T
Smt. Sumitra @ Bumpal accused has been facing trial for an offence under Sec.21 of Narcotics Drugs and Psychotropic Substances Act (hereinafter referred to as the 'Act').
2. Accusation levelled against accused Sumitra is that on 11.01.2009 at about 9.25 a.m. She was found in possession of 250 grams of heroin, in front of Sheela Cinema, Pahar Ganj, Delhi.
FIR No.03/2009 1
3. In brief, it is case of the prosecution that on 11.01.2009 Inspector Vivek Pathak of police station Narcotics Branch received secret information about expected arrival of a lady, namely Sumitra, at Sheela Cinema in the area of Pahar Ganj to supply Heroin in between 9.15 - 9.45 am.
On the basis of this secret information, the SI brought the matter to the notice of Sh. M L Sharma, the concerned SHO, who also satisfied himself on inquiry from the informer and communicated information to ACP telephonically. Directions were issued for conducting of raid. Thereupon raiding party consisting of SI Vivek Pathak, WHC Rani Reddy and Ct. Rakesh left the police station in a government vehicle no. DL1CJ 3481, at about 8.30 am and reached the disclosed place. They succeeded in apprehending the accused, at about 9.20 a.m., at the pointing out of secret informer.
Inspector Vivek Pathak served notice under Section 50 of the Act upon the accused. Since the accused did not offer to be searched in the presence of Gazetted officer or Magistrate. WHC Rani Reddy conducted personal search of the accused which led to recovery of a polythene packet containing heroin. It was weighed and found to be 250 gms.
Two samples of 5 gms each were drawn from the lot and sealed by Inspector Vivek Pathak with his seal. Remaining heroin was also converted into a parcel and similarly sealed. The case property was seized, Form FSL was prepared and impression of the seal was affixed on FSL form.
Inspector Vivek Pathak then sent rukka from spot through Ct. Rakesh FIR No.03/2009 2 while also handing over to him the sealed parcels, Form FSL and copy of seizure memo with specific directions. That is how, present case was registered.
At the police station, Inspector Mohan Lal Sharma, SHO affixed his seals on the parcels and Form FSL. He also mentioned number of the FIR on these items and then handed over the same to Mahesh Kumar, MHC(M) with copy of seizure memo.
ASI Paramjeet Singh took over investigation and reached the spot. At the spot, the ASI prepared rough site plan of the place of recovery, arrested the accused and conducted his personal search. On return to the police station, ASI deposited in malkhana the articles recovered on personal search of the accused.
Reports under Section 57 of the Act were dispatched to the senior officers. Sealed sample parcel was sent to FSL alongwith forwarding letter (FSL Form). On analysis, FSL report was prepared.
On completion of investigation, challan was put in court. Copies of documents relied upon by the prosecution were supplied to the accused free of cost.
Charge 4 .
Prima facie case having been made out, charge for an offence U/s 21 of Act was framed against the accused on 18.03.2009.
Since accused pleaded "not guilty" and claimed trial, prosecution was called upon to lead evidence.
FIR No.03/2009 3
Prosecution Evidence 5 .
In order to prove its case prosecution examined, following 9 witnesses: PW1 HC Om Prakash, official To prove communication U/s 42 & 57 of from the office of ACP the Act.
PW2 HC Mahesh Chand, Duty To prove recording of FIR Ex.PW1/A. Officer PW3 HC Mukesh Kumar, To prove entries made in register no.19 MHC(M) regarding deposit of case property and dispatch of sample to FSL.
PW4 Inspector M. L. Sharma The concerned SHO.
PW5 WHC Rani Reddy Witness to arrest and recovery.
PW6 ASI Parmjeet Singh Who took over investigation from SI
Vivek Pathak.
PW7 Inspector Vivek Pathak, Who initially investigated the case on Investigating Officer arrest and recovery.
PW8 Ct. Rakesh To prove factum of arrest and recovery. Statement of Accused
6. When examined U/s 313 Cr.P.C. the accused denied all other incriminating circumstances appearing in evidence against them and claimed false implication.
7. Arguments heard. File perused.
Noncompliance of Section 42 (1) of the Act
8. It is case of prosecution that secret information against the accused was received at about 8.15 am and the same was communicated firstly to the SHO and the SHO in turn forwarded the same to the ACP.
Learned defence counsel has contended that this is a case where FIR No.03/2009 4 provisions of Section 42 (1) of the Act have not been complied with as the secret information was not recorded in any DD entry. As regards, DD entry no. 6A Ex PW1/A, learned defence counsel has submitted that it contains information regarding communication of the secret information in compliance with provision with Section 42 of the Act but on account of non compliance with provision of Section 42 (1), prosecution version becomes doubtful. In support of this submission, learned defence counsel has referred to decision in State of Punjab vs. Baldev Singh & Ors, III (1993) CCR 109 (SC).
As noticed above, secret information was received against the accused on 11.01.09 by SI Vivek Pathak at 7.45 a.m., on receipt of the secret information, the SubInspector accompanied by W HC Rani Reddy, Ct. Rakesh Kumar and secret informer left the PS Narcotics Branch, Delhi at 8.30 a.m. The police party accompanied by the secret informer so left for the disclosed place i.e. Sheela Cinema, as the secret information was that accused was expected to arrive near Sheela Cinema hall. It is true that U/s 42 of the Act, information received is required to be recorded, but in this case in DD no.7A, the contents of the secret information have not been recorded, but the same does not adversely affects the case of prosecution or of any aid to the accused. The reason is that SI Vivek Pathak did not keep the secret information with him. Rather, he produced the secret informer before Inspector Mohan Lal Sharma, SHO, Narcotics Branch at his office. This information was also communicated telephonically to Sh. Mohinder FIR No.03/2009 5 Singh, ACP/N&CP. Inspector M.L. Sharma while appearing as PW4, has proved arrival of SI Vivek Pathak at his office on 11.01.09 and to have apprised him of the secret information against the accused. The Inspector has specifically stated that secret informer also accompanied the Sub Inspector. He has reproduced the contents of the secret information while statement in court and further stated to have verified the facts and communicated the information to Sh. Mahinder Singh, ACP/N&CP. Accordingly, decision in Baldev Singh's case (Supra) does not help the accused.
Search of accused
9. It is case of prosecution that after the accused was apprehended and served with notice under Section 50 of the Act, she was taken to the government vehicle in which woman HC Rani Reddy conducted her search which led to recovery of one transparent polythene from the left side of her chest and polythene bag was found to contain 250 grams of heroin.
Learned defence counsel has submitted that under NDPS Act, HC Rani Reddy was not empowered to conduct search of the accused and as such illegality committed in search of the person and as such accused is entitled to acquittal. In support of his contention, defence counsel has referred to decision in Ayub Khan v. State of Rajasthan 2002 (2) Crimes
411. In Ayub Khan's Case (Supra) cited by learned defence counsel, case of prosecution was that after service of notice U/s 50 of the Act, it got FIR No.03/2009 6 conducted search of accused therein by "a Constable". Learned defence counsel has not pointed out any provision of law which does not empower a Head Constable to conduct search of an accused in such like cases.
This contention raised by learned defence counsel is without merit, the reason being that in Delhi, a Head Constable is empowered to conduct search of an accused person involved in commission of crime under NDPS Act.
Field Kit
10. It is case of prosecution that after the recovery, with the use of field testing kit, the contents of the lot recovered from the accused were tested and found to be heroin. The contention raised by learned defence counsel is that prosecution has not placed on record any document to suggest that any such field testing kit was collected by the raiding party on the given date from the malkhana or that after its use, same was redeposited with the malkhana and as such it becomes doubtful if any such filed testing kit was used in testing the lot at the initial stage.
It has come in the statements of PW5 HC Rani Reddy, PW7 Inspector Vivek Pathak and PW8 HC Rakesh Kumar that IO kit and field testing kit were taken along at the time the police party left PS Narcotics Branch alongwith secret informer. This fact also finds mention in rukka Ex.PW7/A which was dispatched from the spot at about 12.30 p.m. and led to recording of FIR Ex.PW1/A at 1.00 p.m. There is nothing to suggest that prosecution has introduced the fact of having carried field testing kit along, subsequently. Therefore, there is no merit in the contention raised by learned defence FIR No.03/2009 7 counsel.
Noncompliance of provisions of Section 50 of the Act
11. Learned defence counsel has submitted that in this case it is not case of the prosecution that after her apprehension and before her search, she was taken to any Gazetted officer or Magistrate in connection with search of her person and as such the recovery if any from the accused cannot be looked into. In support of this contention, learned counsel has referred to decision in State of Punjab vs. Baldev Singh & Ors., III (1993) CCR 109 (SC).
It has also been submitted that there is nothing on record to suggest that accused was apprised of the meaning of word "Rajpatrit Adhikari" (Gazetted officer) and as such it is a case of acquittal of accused.
Case of the prosecution is that before conducting search of the accused, she was served with notice U/s 50 of the Act. PW5 HC Rani Reddy, PW7 Inspector Vivek Pathak and PW8 Ct. Rakesh Kumar have testified about this fact. Prosecution has proved notice Ex.PW5/A wherein attestation of HC Rani Reddy and Ct. Rakesh Kumar. It is available from the contents of the notice that the accused was duly apprised of her legal right of being subjected to search in presence of Gazetted Officer or Magistrate and that arrangement could be made in this regard. In the course of arguments, learned defence counsel has not been able to point out as to which word could be substituted with Rajpatrit Adhikari / Gazetted Officer while explaining the accused her legal right.
Ex.PW5/B is reply appended to this notice. It also bears signatures of FIR No.03/2009 8 the accused and attestation of the aforesaid two police officials. As per this reply the accused opted not to avail of her legal right of being subjected to search in presence of Gazetted Officer or Magistrate. Copy of this notice was recovered on her personal search, subsequently conducted on arrival of ASI Paramjit Singh. This fact stands established from personal search memo Ex.PW5/E which was prepared by ASI Paramjit Singh and attested by HC Rani Reddy and SI Inspector Vivek Pathak. Cash to the tune of Rs.110/ was also recovered from her possession at that time.
In view of the material available on record, this court finds that prosecution has established due compliance with provisions of Sec.50 of the Act.
Version about recovery & subsequent proceedings
12. Secret information was received by Inspector Vivek Pathak. He has appeared in the witness box as PW7 and deposed about secret information disclosed to him by the secret informer at PS Narcotics Branch on 11.01.09 at about 7.45 a.m. The secret information, according to PW7, was about expected arrival of the accused near Sheela Cinema between 9.15 a.m. to 9.45 a.m. for supply of smack and that he was indulging in supply of heroin in the area of Nabi Karim, New Delhi.
PW7 Inspector Vivek Pathak has further stated to have communicated this information to Inspector Mohan Lal Sharma, SHO. He even produced the secret informer before the SHO, at about 8.00 a.m. Further, according to PW7, SHO also inquired into the matter and passed on the information to Sh. FIR No.03/2009 9 M.S. Dabas, in turn directed them to conduct raid.
Raiding party constituted by SI Vivek Pathak include W HC Rani Reddy, Ct. Rakesh Kumar and secret informer. This fact stands recorded in DD no.6A Ex.PW1/A. PW5 HC Rani Reddy and PW8 Ct. Rakesh Kumar have deposed to have accompanied SI Vivek Pathak on the given date. It is in their statements that secret informer was accompanying them. It is case of prosecution that the raiding party left by government vehicle no.DL 1CJ 3481 at about 8.30 a.m. The vehicle was being driven by Ct. Joginder. They reached near Sheela Cinema at about 9.00 a.m. following the route of Shakarpur, Vikas Marg and Kamla Market. According to PW7, on the way, he had asked 45 persons to join the investigation but none came forward. Again on reaching Sheela Cinema, he asked 45 persons, but they left the spot without disclosing their names and addresses. It is in the statements of witnesses that they held picket and apprehended the accused near Sheela Cinema. Statement of PW7 SI Vivek Pathak, in this regard finds support from the statements of PW5 HC Rani Reddy and PW8 Ct. Rakesh Kumar as well as from the contents of rukka which was dispatched from the spot.
It also stands proved from the statements of the aforesaid three PWs that after service of notice U/s 50 of the Act and apprising the accused of her legal right to be subjected to search in presence of Gazetted Officer or Magistrate, HC Rani Reddy conducted search and recovered from her possession the contraband which she was carrying in a transparent polythene packet, tied with a rubber band. HC Rani Reddy narrated specifically as to FIR No.03/2009 10 from where this transparent polythene packet was recovered.
It is case of the prosecution that the contraband was first tested and then weighed and found to be 250 gms. heroin, out of which, two samples, each of 5 gms. were drawn, turned into separate parcels. The sample parcels and the residue contained in the third parcel were given mark A, B & C respectively. In this regard, there is cogent and convincing testimony of PW5 HC Rani Reddy, PW7 Inspector Vivek Pathak and PW8 Ct. Rakesh Kumar. All the aforesaid witnesses have also deposed about the process followed in sealing the three parcels and further that impression of the seal was put on FSL form, which was filled at spot. It stands proved on record that SI Vivek handed over the seal bearing impression 'VP' used by him in sealing parcel to HC Rani Reddy. This fact finds mention not only in the recovery memo Ex.PW5/C but also in the rukka Ex.PW7/A. Seal was handed over by SubInspector to rule out possibility of tampering with the case property on his part.
Further steps were taken to rule out possibility of tampering with the case property by dispatching the three parcels, form FSL and copy of recovery memo from the spot to the police station where PW4 Inspector M.L. Sharma put his own seal bearing impression one SHO, NBR on all the three parcels as well as form FSL. PW4 Inspector M.L. Sharma has supported the case of prosecution about sealing of the case property at the police station and further that he called MHC(M) to his office and handed over the same to him. This fact finds corroboration from the documentary FIR No.03/2009 11 evidence available in the form of Ex.PW3/A i.e. relevant entry made in register no.19 by the concerned MHC(M) PW3 Mahesh Kumar. This entry bears signatures of PW4 Inspector M.L. Sharma in proof of deposit of the case property by him with MHC(M) against entry at Sr.no.993 of 11.01.09.
Nonfiling of log book of official vehicle
13. Learned defence counsel contended that prosecution has failed to place on record copy of relevant entries in log book of the concerned vehicle to prove that the raiding party actually left for the spot on the basis of secret information.
It is true that prosecution has not placed on record any log book or copy of relevant entry but its nonproduction does not adversely affect the prosecution version regarding the raid, the reason being that from the cogent and convincing testimony of the witnesses and the documentary evidence, it stands established that it was on the basis of secret information that all the three members of the raiding party accompanied by secret informer travelled form PS Narcotics Branch to Sheela Cinema, and that is how, the accused was apprehended.
Nonjoining of witnesses
14. None of the documents prepared at the spot bears attestation of any witness from the public. Learned defence counsel has submitted that as is available from the statements of prosecution witnesses, persons from the public were available for being associated in the raiding party before or at the time of recovery, no efforts appears to have been made to associate any FIR No.03/2009 12 person from the public for the purpose of transparency in the investigation. Learned defence counsel has contended that in view of decision in Maninder Singh @ Sonu Vs. State, Crl. Appl. No. 250/07, decided by our Hon'ble High Court on 04.09.2009, nonjoining of witnesses from the public adversely affects the case of prosecution and as such the accused is entitled to acquittal on this additional ground.
It is true that this is case where there is no corroboration in the independent source. However, it appears in the statements of PWs that efforts were made to associate from the public but none came forward.
Even otherwise, on the point of nonjoining of witness from the public, in the case of Ajmer Singh vs. State of Haryana (2010) 3 SCC 746, Hon'ble Apex Court has held as under: "The submission that the evidence of the official witnesses cannot be relied upon as their testimony has not been corroborated by any independent witness cannot be accepted. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. It may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
In this case, learned defence counsel has not been able to point out FIR No.03/2009 13 even single contradiction in the statement of the witnesses to arrest and recovery from the accused. In absence of any contradiction or discrepancy in their statements, nonjoining of independent witness does not adversely affect the case of prosecution.
Difference in weight of the contents of the samples sent to FSL
15. It is case of prosecution that two samples were drawn from the lot recovered from the accused. Both these parcels were sent to FSL on 29.01.2009. It finds mention in FSL report Ex PX that weight of Ex PA with polythene was 4.80 grams. Learned defence counsel has submitted the prosecution has not explained as to how the contents of the sample which was 5 gram at the time of sample was drawn from the lot, were found to be less in weight at the time the same were weighted at FSL and the non explanation in this regard further creates doubt in the version of prosecution.
Recovery was made on 11.01.09 and the sample reached FSL on 29.01.09. It is true that according to PW5, PW7 & PW8, two samples, each of 5 gms., was drawn from the lot. As per report Ex.PX of FSL, the weight of the sample was found to be approximately 4.81 gms. Learned Addl. P.P. has rightly submitted that this much difference in weight, observed on 29.01.09, while the recovery was made on11.01.09, does not create any doubt in drawing of the sample. As discussed above, prosecution has fully established that two samples each of 5 gms. were drawn from the lot, turned into parcel, which were sealed initially by the Investigating Officer and subsequently by the SHO.
FIR No.03/2009 14
Possibility of tampering with case property
16. Learned defence counsel has also pointed that according to PW8 Ct. Rakesh, who took the sealed parcels to FSL, the acknowledgment issued by the officials of the FSL does not depict deposit of any FSL form. It has been submitted from this statement of PW8, it can safely be said that no FSL form was deposited and as such it is a case where prosecution has failed to rule out possibility of tampering with the case property.
It is case of the prosecution that Ct. Rakesh Kumar )PW8) collected sample from PW3 HC Mahesh Kumar, MHC(M) on 29.01.09 and deposited the same at FSL on the same day. While appearing in court as PW8, Ct. Rakesh Kumar has testified about this fact and further that he deposited the sample, FSL form at FSL with seals intact. PW3 HC Mahesh Kumar has supported the statement of PW8 Ct. Rakesh Kumar about dispatch of sample parcel to FSL on 29.01.09 vide RC no.131/21. He specifically deposed that form FSL was also delivered to the Constable with sealed sample. Even in FSL report Ex.PX, it clearly finds mention that seals on the sample parcel were intact and tallied with the specimen seal as available on forwarding letter (FSL form). This establishes that FSL form also reached FSL. In absence of FSL form, how could the experts could tally the seals available on the sealed parcel with the impression of the seal. Therefore, there is no merit in the contention raised by learned defence counsel.
Delay of 18 days in despatch of the sealed parcel to FSL has also been referred to buttress the arguments that this is a case where the prosecution FIR No.03/2009 15 has failed to rule out possibility of tampering with case property.
It is true that sample was sent to FSL about 17 days after recovery but in view of the above discussed evidence that prosecution has led cogent and convincing evidence that case property including the sample was not allowed to be tampered at any stage till the sample reached the officials of FSL. So dispatch of the sample parcel to FSL after 17 days, does not adversely affects the case of prosecution.
Learned defence counsel has submitted that there is nothing on record to suggest that the case property was sent to the concerned Magistrate which again creates doubt, there being possibility of tampering with the case property. In this regard, reference has been made to decision in Valsala v. State of Kerela, 1995 Cri LJ 2662 (SC).
In Valsala's case, Hon'ble Apex Court found that there was nothing to show if case property was sealed. However in this case, prosecution has led cogent and convincing evidence regarding seals affixed on the case property, its deposit with the MHC(M) on the same day with seals intact and dispatch of the sample parcels to FSL wihtout the seals having been tampered with. In Valsala's case (supra), Hon'ble Apex Court did not go into the legal question if provisions of Sec.55 of the Act are mandatory or directory. In the given facts and circumstances of this case, accused cannot take any advantage of decision in Valsala's case (supra).
FIR No.03/2009 16
Compliance with provisions of Sec.57 of the Act
17. In order to prove compliance with provisions of Sec.57 of the Act, prosecution has proved on record that information was sent by PW6 ASI Paramvir Singh to the SHO and the SHO in turn forwarded the same to the office of ACP. This fact finds corroboration from the documentary evidence in the form of Ex.PW1/C and Ex.PW1/D and from the statement of PW1 HC Om Parkash, from the office of ACP, Narcotics Branch.
Defence Plea
18. Learned defence counsel has submitted that actually the accused was picked up from her house alongwith her daughter and her children and taken to the police station and when the unlawful demand of Rs.5 lacs raised by the police was not met with, she was falsely implicated in this case. In support of defence plea, accused has examined her neighbours DW1 Smt. Asha & DW2 Chhoti Bai and her daughter DW3 Smt. Poonam.
According to DWs1 & 2, in the month of January, about two years ago, (from 15.04.2011, when their statements were recorded in court), Sumitra, accused and her children were taken away by some police officials saying that some inquiry regarding her soninlaw was to be conducted, but at about 2.30 p.m., her daughter Smt. Poonam returned and demanded money from them, saying that it was to be paid to police, but they could not arrange any money.
It may be mentioned here that there is nothing in the statements of DW1 & DW2, as to at what time police officials of which police station did FIR No.03/2009 17 visit the house of the accused. They have also not nowhere stated as to how much amount was asked to be arranged for payment by Smt. Poonam to the police. It is not believable that when any such demand is raised, the amount would not be disclosed. This goes to show that actually no such money was demanded by Poonam, daughter of the accused from these two DWs.
Even otherwise, had any such demand been put forth and on its non fulfillment, the accused was falsely implicated, they would have come forward to help Poonam and her mother by lodging complaint to higher authorities. Admittedly, DW1 or DW2 did not lodge any such complaint with any higher authority.
As regards statement of DW3 statement of DW3 Smt. Poonam, on 11.01.09, some police officials had come to her house i.e. in Laxman Puri, Delhi. According to Smt. Poonam, she, her mother and four children were taken away from her house in a gypsy to the police station Shakarpur, where one police official demanded Rs.One lac and advised her to bring this much amount or that otherwise her mother, accused would be implicated in a case under NDPS Act.
So as per version of DW3 Poonam, demand of Rs.One lac was made by the police. However in her statement U/s 313 Cr.P.C., accused, nowhere pleaded that any demand of Rs.One lac was raised from her or from her daughter by any police official. From the trend of cross examination, it appears that learned defence counsel suggested to the DWs that a sum of Rs. 5 lacs was demanded. So there is contradiction in the version suggested to FIR No.03/2009 18 the PWs and one put forth by Poonam, which belies the defence plea.
Had she sought any such financial held from DW1 and DW2, she would not have omitted to state about it in her statement. However, DW3 Poonam nowhere stated that she had asked DW1 or DW2 to arrange any money.
DW3 has placed on record Ex.DW3/A, photocopy of complaint which she is alleged to have made to higher authorities telegraphically. No reliance can be placed on this document. Firstly, because this is only a photostat copy, and secondly, because the concerned official from the Post & Telegraph Department has not been examined to prove its contents. Accused should have taken steps for preservation of record and then to summon officials from Post & Telegraph Department to prove any such telegram purported to have been sent by her daughter. No such step appears to have been taken. Therefore, even this document does not come to the rescue of the accused.
In her statement U/s 313 Cr.P.C., the accused put forth the defence plea of false implication due to matrimonial dispute of her son. However, accused has not brought on record anything to suggest as to with whom her son was having any dispute and of what nature. It is not believable that on account of family dispute, police personnel from PS Narcotics Branch would book an accused in a case like the present one.
In view of the above discussion, the defence plea put forth by the accused falls to the ground.
FIR No.03/2009 19
Result received from FSL
19. A perusal of report Ex.PX received from FSL would reveal that the contents of the sample when analyzed were found to contain paracetamol, Caffeine, Acetylcodein, Monoacetylmorphine & discetylmorphine. However, diacetylmorphine was found to be 23.92%.
Conclusion
20. In view of the above discussion, this court finds that prosecution has fully established its case against the accused that on 11.01.2009, she (accused) kept in her possession 250 gms of heroin, when apprehended in the area of PS Pahar Ganj. Accordingly, Sumitra @ Bumpal is held guilty of the offence U/s 21(b) of Narcotics Drugs and Psychotropic Substances Act and convicted thereunder.
Let the convict be heard on the point of sentence.
Announced in Open Court
on 13.04.2012 (Narinder Kumar )
Special Judge(NDPS) Delhi.
FIR No.03/2009 20
IN THE COURT OF SH. NARINDER KUMAR
SPECIAL JUDGE (NDPS) : DELHI
SC No.11/09
FIR No.03/2009
PS Narcotics Branch
U/s 21 of NDPS Act
In the matter of:
State
Versus
Smt. Sumitra @ Bumpal .......Accused
ORDER ON SENTENCE
Present: Sh. Rajiv Mohan, Addl. P.P. for State.
Convict with counsel Sh. Naveen Gaur.
Heard on the point of sentence. Convict and her counsel have prayed for leniency.
Record reveals that convict Sumitra @ Bumpal is not a previous convict. She remained in custody for a period from 12.01.2009 to 24.12.2009. The quantify of heroin recovered from the possession is not commercial but intermediatory one.
Section 21 (b) of the Act provides rigorous imprisonment for term which may extend to ten years, and with fine which may extend to 1 lac rupees.
FIR No.03/2009 21
Having regard to the quantity of the contraband recovered from the convict, which is intermediatory, all other facts and circumstances of the case including that the accused is not a previous convict and is aged about 50 years of age, this Court deems it a fit case to sentence the convict to undergo Rigorous Imprisonment for a period of three years and to pay fine of Rs. 25,000/.
Accordingly, convict Sumitra @ Bumpal is hereby sentenced to undergo Rigorous Imprisonment for a period of three years and to pay fine of Rs.25,000/, or in default of payment of fine, she shall undergo further Rigorous Imprisonment for nine months, for the offence under Section 21 (b) of Narcotics Drugs and Psychotropic Substances Act.
The period of imprisonment already undergone during investigation, inquiry and trial to be set off against the period of sentence awarded vide this judgment, in view of provisions of Sec.428 IPC.
Case property be disposed of in accordance with law on expiry of period for Appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 13.04.2012 (Narinder Kumar )
Special Judge(NDPS) Delhi.
FIR No.03/2009 22