Delhi District Court
State vs Dalip Paswan on 28 August, 2012
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus Dalip Paswan
S/o Late Sh Nageshwar
Paswan
Vegabond near Vikram
Hotel, Amar Colony,
New Delhi.
Permanent R/O village
and PS- Mansai,
District Katihar,
Bihar
SC No. 18A/12
FIR No. 41/12
U/S: 21 (b)NDPS Act
PS: Amar Colony
Date of institution : 07.04.2012
Date of reserving judgment : 28.08.2012
Date of pronouncement : 28.08.2012
Computer ID Number :02406R0078282012
J U D G M E N T
The accused was sent to face trial by the SHO PS Amar Colony on allegations that on 10.02.2012 at about 6.30 PM, in Gali Railway Station, Near Jumbo House, S. N. Puri, he was found to be in possession of 9 Grams of Smack, without any permit or license and in contravention of the provisions of Section 8 (c) of the NDPS Act, which is an offence punishable U/S 21(b) of the abovesaid Act.
2. The facts of the case, in brief, are that the IO/SI Yogeshwar Singh, HC Davender and PW2 HC Jagjivan SC No.18A/12 State Vs Dalip Paswan 2 (Constable at that time) of the above PS were on patrolling duty in the area of the PS and had reached at the above spot at about 6.30 PM. On seeing the above police officials, a person had suddenly turned back and started moving at a fast speed. The above person was apprehended on suspicion and his identity was revealed as Dalip Paswan, the accused of this case, which was a vegabond, near Vikram Hotel, Amar Colony, New Delhi and a permanent resident of District Katihar, Bihar.
3. In the search of the accused conducted by the above IO/SI, one packet of transparent polythene was recovered from the right side pocket of the pant of the accused and the same was found containing some smack like powdery substance of matmaila colour (earth like colour). The accused had also confirmed the above powdery substance to be Smack. The intimation regarding the recovery of the above Smack powder was given to the SHO by the IO and the SHO had directed him to conduct the further proceedings as per law.
4. The IO had requested few passersby to join the proceedings, but none had joined. The accused was told about his legal right of search in the presence of a Magistrate or a Gazetted Officer and was also offered the search of the police party, but he had refused for the same. One written notice U/S 50 of the NDPS Act Ex.PW2/A (carbon copy) was also given to the accused in this regard and his reply Ex.PW2/A1 to the same was written on the SC No.18A/12 State Vs Dalip Paswan 3 notice Ex.PW2/A itself and the same was signed by the accused.
5. The IO had then weighed the above Smack recovered from the possession of the accused, alongwith its polythene pack, and its weight came to be 9 Grams. Two samples of 1 Gram each were separated from the above Smack and the same were kept in separate polythene pouches and converted into cloth parcels. The remaining Smack was kept in the same polythene and was also converted into a cloth parcel and the sample parcels were numbered as S1 and S2 and the parcel of remaining Smack was numbered as S. All the three parcels were sealed with the seals of YS. Form FSL was filled up at the spot and same seal affixed thereon and the parcels and Form FSL were taken into possession vide seizure memo Ex.PW2/A2. Seal after use was handed over to PW2 HC Jagjivan.
6. It is also alleged that thereafter the IO had prepared rukka and handed over the above rukka as well as the above sealed parcels, FLS form and a copy of the seizure memo to HC Davender with instructions for handing over the rukka to the Duty Officer and the parcels and other documents to the SHO. On the basis of the above rukka, this case U/S 21 of the NDPS Act was registered against the accused vide FIR Ex.PW4/A. The above sealed parcels and other documents were handed by HC Davender to the SHO/PW1 Inspector Govind Sharma, who had affixed his seals of GS on the above parcels and the FSL form and had SC No.18A/12 State Vs Dalip Paswan 4 deposited the same in the Malkhana with the MHC(M).
6. Further investigation of this case was assigned to SI Davender Kumar, who had reached at the spot and was handed over the custody of the accused, as well as the relevant documents by the first IO. He had prepared the site plan of the spot, arrested the accused vide memo Ex.PW2/B, conducted his personal search vide memo Ex.PW2/C and also recorded his disclosure statement Ex.PW2/D. In the personal search of the accused his purse containing Rs.110/- in cash and one notice U/S 50 of the NDPS Act were recovered.
7. Subsequently, SI Davender Kumar had also sent the report U/S 57 of the NDPS Act, Ex.PW1/A to the ACP concerned/PW3 Sh Harcharan Verma, the sample parcel to the FSL for analysis and had prepared and filed the chargesheet in this Court after recording of the statements of the witnesses and completing the other necessary formalities. In the FSL report dated 30.04.2012, which was received in the court subsequently, the above sample Mark S1 had tested positive for the presence of diacetylmorphine (heroin) to the extent of 0.8%.
8. The charge-sheet was filed in this court on 07.04.2012 and cognizance thereof was taken on the same day. A prima facie case for the commission of the offence punishable U/S 21 (b) of the NDPS Act was found to be made out against the accused and hence a charge for the said offence was also framed against him by this court on 06.07.2012.
SC No.18A/12 State Vs Dalip Paswan
5
9. The prosecution in support of its case had
examined only four witnesses on record when the accused had intervened in the judicial proceedings and had moved an application for pleading guilty in the matter. He was questioned at length regarding the voluntariness of his plea of guilt and the same was found to be made voluntarily. It appears that he was aware of the quality and credibility of the prosecution evidence which was brought on record against him till date and was also yet to be led in the case and also regarding his fate during the trial of this case. Though initially he had pleaded not guilty to the charge framed against him, but it appears that after his confinement in the judicial custody his consciousness had pulled up him and made him to confess his guilt.
10. The names and the purpose of examination of the above four witnesses of the prosecution is stated herein below:-
11. PW1 Inspector Govind Sharma was the SHO of the above PS at the relevant time and he has deposed regarding the information conveyed to him by the IO about the apprehension of the accused with Smack and also regarding the deposit of the above sealed parcels and the above documents in the Malkhana by him. The above report U/S 57 of the NDPS Act given by the second IO was also forwarded to the ACP through him.
SC No.18A/12 State Vs Dalip Paswan 6
12. PW2 HC Jagjivan is a member of the raiding police team which had apprehended the accused with the above contraband substance. He has broadly deposed on the above lines of the prosecution story and has proved the above documents prepared at the spot in his presence by the IO/SI Yogeshwar. He has also identified the accused as well as the remaining Smack as Ex.P1, the second sample as Ex.P2, and remnant of the sample tested in FSL as Ex.P3.
13. PW3 ACP Harcharn Verma had received and endorsed the above report U/S 57 of the NDPS Act Ex.PW3/A in his office on 11.02.2012 and the same was also registered in his office vide entry Ex.PW3/B of the Dak Register.
14. PW4 HC Rajender Singh is the Duty Officer of this case and he has proved on record the FIR Ex.PW4/A recorded by him and also his endorsement Ex.PW4/B made on the original rukka.
15. Just after the conclusion of cross-examination of PW2 HC Jagjivan on 28.08.2012, who was cross-examined subsequent to the examination of PW3 & PW4, the accused had intervened in the judicial proceedings with his above application for pleading guilty in the matter, which was moved by him through the Ld. Amicus Curiae, and his plea was also found to be voluntary, as stated above. In view of the above application moved by the accused, the evidence of the prosecution had to be closed by the order SC No.18A/12 State Vs Dalip Paswan 7 of the court of even date as the recording of the remaining evidence would only have been an exercise in futility. The statement of the accused U/S 313 Cr.P.C. has also been recorded today separately.
16. In his statement U/S 313 Cr.P.C the entire incriminating evidence brought on record by the prosecution was put to the accused and most of the evidence was admitted by the accused to be correct. He has admitted his apprehension by the police party from the abovesaid place and also the recovery of the above contraband substance while saying that he is a victim of circumstances and he has also prayed for a lenient view in awarding sentence to him, keeping in view the period of custody already undergone by him.
17. I have heard the arguments advanced by Sh Inder Kumar, Ld Additional PP for the State and Sh Manish Khanna, Ld Amicus Curiae for the accused and have also appreciated the evidence led on record and the other record of the case.
18. Out of the four witnesses examined on record by the prosecution, PW2 HC Jagjivan is a witness of recovery of the above contraband substance from the possession of the accused. The depositions made by PW2 are found to be trustworthy and there is no reason to disbelieve or discard the same. Though, he has also been cross-examined by Ld. Amicus Curiae at length, but during his cross-
SC No.18A/12 State Vs Dalip Paswan
8
examination nothing material could be extracted out,
which could disprove the recovery of the above contraband substance from the possession of the accused. Though some minor contradictions with regard to certain timing connected with the investigation have come on record during the cross-examination of the prosecution witnesses, but the same are not considered to be material enough for disbelieving or discarding the depositions made by the prosecution witnesses or the prosecution story as a whole.
19. The oral and documentary evidence led on record by the prosecution, coupled with the plea of guilt of the accused recorded in his application for pleading guilty and also the admissions made by him during the course of recording of his statement U/S 313 Cr.P.C., clearly establishes the case of the prosecution regarding the recovery of the above quantity of Smack, i.e 9 Grams of Smack, from the possession of the accused. The above quantity of 9 Grams of Smack falls within the category of ' medium or intermediate ' quantity as in the table notified under the NDPS Act a quantity of 5 Grams of Smack has been prescribed to be a ' small quantity ' and 250 Grams has been prescribed to be the ' commercial quantity ' of the above contraband substance.
20. In view of the above, it can be said that prosecution has successfully brought home the guilt of the accused for commission of the offence punishable U/S 21(b) SC No.18A/12 State Vs Dalip Paswan 9 of the NDPS Act, for which the charge was framed against him. The accused is, therefore, held guilty and convicted for the offence U/S 21(b) of the NDPS Act. Let he be now heard on the quantum of sentence.
Announced in the open
court on 28.08.2012 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC No.18A/12 State Vs Dalip Paswan
10
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST SAKET COURT COMPLEX, NEW DELHI State Versus Dalip Paswan S/o Late Sh Nageshwar Paswan Vegabond near Vikram Hotel, Amar Colony, New Delhi.
Permanent R/O village and PS- Mansai, District Katihar, Bihar SC No. 18A/12 FIR No. 41/12 U/S: 21 (b)NDPS Act PS: Amar Colony ORDER ON SENTENCE Present: Sh Inder Kumar Additional PP for the State.
Convict in JC with Sh Manish Khanna, Amicus Curiae.
After having convicted the accused for the offence U/S 21(b) of the NDPS Act vide my judgment of the even date, arguments have also been heard today as advanced by Sh Inder Kumar, Ld Additional PP for the State and Sh Manish Khanna, Ld Amicus Curiae for the accused on the point of sentence to be awarded to the convict. The submissions made by the convict himself have also been heard.
2. The accused has been held guilty and convicted SC No.18A/12 State Vs Dalip Paswan 11 for possessing 9 Grams of Smack, which just exceeds the ' small ' quantity of 5 Grams of the above contraband substance prescribed under the NDPS Act. Though the offence U/S 21(b) of the NDPS Act which has been proved against him carries a punishment of rigorous imprisonment extending up to 10 years and also a fine extending up to Rs. 1 Lakh, but the quantity found in possession of the accused just exceeds the small quantity, which is punishable U/S 21(a) of the NDPS Act and carries a punishment of rigorous imprisonment extending upto 6 months or a fine extending upto Rs.10,000/- only or both.
3. The accused is in custody in this case since the date of his arrest, i.e. 10.02.2012, and a period of about 6½ months has already passed. He has been languishing in jail as even no member of his family has come forward for his rescue or even to bail him out. He states that due to his poverty and adverse conditions he could not even marry and settle in life. In the FSL report, the purity percentage of diacetylmorphine has been stated to be 0.8% only.
4. Therefore, keeping in view the totality of the facts and circumstances, the convict is sentenced to the period of imprisonment already undergone by him and a fine of Rs.1,000/- for the offence punishable U/S 21(b) of the NDPS Act. In case of non payment of fine he shall further undergo simple imprisonment for two days. Fine has not been paid.
SC No.18A/12 State Vs Dalip Paswan 12
5. A copy of the judgment and the order on sentence be supplied to the convict free of cost.
6. The case property be confiscated and disposed of as per law, after the expiry of the period of limitation for filing of the appeal and subject to the outcome of any appeal to be filed against this judgment and order on sentence.
File be consigned to the record room.
Announced in the open
court on 28.08.2012 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC No.18A/12 State Vs Dalip Paswan