Delhi District Court
3.Title :State vs . Kailash @ Deepak on 3 August, 2011
IN THE COURT OF SHRI RAJESH MALIK : MM (WEST) -05
TIS HAZARI COURTS : DELHI
JUDGMENT
1.FIR No. :293/04
2.Unique Case ID No. :02401R6327532004
3.Title :State Vs. Kailash @ Deepak
3(A).Name of complainant :Sh. M.P.S.Bali, Deputy Superintendent of Jail
no.4, Tihar Jail, New Delhi.
3(B).Name of accused :Kailash @ Deepak S/o Sh. Dhani Ram
R/o Central no.4, Tihar Jail, New Delhi.
4. Date of institution of challan :02.09.2004
5. Date of Reserving judgment :03.08.2011
6. Date of pronouncement :03.08.2011
7. Date of commission of offence :26.05.2004
8. Offence complained of :Under Section 20 (b) (ii) (a) of NDPS Act
9. Offence charged with :Under Section 20 (b) (ii) (a) of NDPS Act
10. Plea of the accused :Pleaded not guilty
11. Final order :Convicted
BRIEF REASONS FOR THE DECISION OF THE CASE:-
1. In brief, the case of the prosecution is that on 26.05.04 at about 12 o'clock at Mulakat Ghar Central Jail no.4, the accused was found in possession of 20 gm charas in contravention of provisions of NDPS Act seized vide seizure memo Ex.PW4/A and thereby he was prosecuted for the commission of offences punishable under Section 20 (b) (ii) (a) of NDPS Act.
2. Charge sheet was filed in the court and after compliance of Section 207 Cr.P.C and after hearing parties; charge under Section 20 (b) (ii) (a) of NDPS Act was framed on 03.02.05 against the accused to which he pleaded not guilty and claimed trial.
3. Prosecution in order to prove its case examined as many as ten witnesses.
FIR No.293/04 1/6PW8 Sh. M.P.S.Bali, Deputy Superintendent, deposed that on 26.05.2004, at about 12 noon, one undertrial, namely, Kailash had been found receiving charas like material from the mulakati during the course of his mulakat. He called the undertrail, who admitted that he took charas for his personal use. Accordingly, he wrote a letter to SHO concerned to take action. His complaint is Ex.PW8/A. He also identified the case property.
PW-10 SI Desh Raj deposed on 26.05.04, he was posted at PS Hari Nagar. On that day, he along with Ct. Anjani was present at Tihar Camp. The DD entry No. 14 A Ex. PW-9/A was marked to them and accordingly, he along with Ct. Anajani went to Jail No. 4 where they met complainant i.e Deputy Superintendent Sh. MPS Bali and complainant produced to him the complaint Ex. PW-8/A along with contraband i.e Charas and one wire guchha. The complainant stated him that the contraband and wire guchha had been recovered by Warden Sanjeev Kumar from the possession of prisoner i.e accused Kailash @ Deepak. He weighed the contraband and it came to 5 gm charas. From the recovered contraband, he took 2 gm contraband as sample and filled form FSL and thereafter, the remaining 3 gm of contraband, 2 gm of sample contraband and form FSL were sealed with the seal of DR and seal after use handed over to Sh. MPS Bali and case property was seized vide seizure memo EX. PW-4/A in the presence of warden Sanjeev Kumar. On the basis of complaint and recovery, he prepared rukka Ex. PW10/A, that was handed over to Ct. Anajani along with the case property, copy of seizure memo and form FSL. Accordingly, Ct. Anjani went to P.S and got the FIR registered. He prepared site plan Ex. PW-10/B at the pointing out of Warden Sanjeev Kumar. Ct. Anjani came back to the gate of Jail No. 4 and handed over to him copy of FIR and original rukka and stated to him that the case property along with form FSL and seizure memo had been handed over to SHO, PS Hari Nagar. He further deposed that he recorded the statements of warden Sanjeev Kumar and complainant MPS Bali and Ct. Anjani. He came back to the PS and recorded statement of Ct. Satish Chandra and of SHO SH. RS. Gahlot. He also sent information as required under Section 57 of NDPS Act to ACP Hari Nagar and the carbon copy of the said information is Ex. PW-10/C. Thereafter, he moved an application for production warrants of accused and arrested accused Kailash vide memo Ex. PW-10/D on 06.07.04.
On 30.08.04, upon his instructions, Ct. Ram Mehar deposited the sample and FIR No.293/04 2/6 form FSL to CFSL Rohini and he recorded the statement of Ct. Ram Mehar and MHCM H.C Shri Ram. He collected the CFSL report Ex. PX. During investigation, the accused stated to him that one Raju used to come to jail for meeting with him and during one of the meeting, he passed on the said contraband to him. He further deposed that he made efforts to trace the said Raju but all in vain. On completion of investigation, he filed the charge sheet.
PW4 Ct. Anjani deposed that on 26.05.04, DD no.14 A was marked to him and SI Deshraj. They went to Tihar Camp where Ct. Satish Chander gave them DD No.14A and on which, they went to the Central Jail. The officer of Jail gave them pullanda of charas with a bunch of wires. Then, they measured the charas and it was found to be five grams out of which 2 gram was taken out as sample. Pullandas of the recovered charas and sample of charas were made and sealed with the seal of DP. Seizure memo Ex.PW4/A was prepared. On complaint of the officer, the rukka was prepared; he took the rukka to PS, got the case registered, came back to the spot and handed over the copy of FIR and rukka to the IO.
PW5 Warden Sanjeev Kumar deposed that on 26.05.06, he was on duty to check the goods which comes from the houses of accused at Mulakat Jangla. He saw accused pulling something with the help of wire. The accused had also something in his hand. He asked the accused to show the same but he did not. He produced the accused before the Duty Officer. The duty officer took them before Deputy Superintendent where the accused showed the thing i.e one panni having 4/5 battis. Thereafter, Deputy Superintendent informed the police and he returned back to his duty. He was called by the police and in his presence; police weighed the charas to be 5 grams out of which two grams was separated as sample. The police seized the case property in a matchbox after wrapping in a piece of cloth vide memo Ex.PW4/A. The police prepared the site plan at his instance. The case property i.e. Two sealed pullanda was produced in the court. He identified the case property and the accused.
4. PE was closed vide order dated 15.04.11. The accused was examined u/s 281 Cr.P.C on 26.05.11 wherein the accused submits that he has been falsely implicated and nothing incriminating was recovered from his possession. The accused further submits that FIR No.293/04 3/6 he had some altercation with warden and the warden in connivance with jail authority falsely implicated in this case. The accused further submits that he does not want to lead any evidence in defence.
5. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have gone through the entire record carefully.
6. Now, the stage has been set to examine the case of the prosecution to see whether it inspires confidence and passes the test of probability, credibility and trustworthiness.
7. Apparently, the contraband recovered was the charas as per the CFSL report. Here, it needs to see whether the relevant provisions of Search and Seizure were complied by the investigating agency or not.
8. Section 50 NDPS provides (1) When any officer duly authorized under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub Section (1).
9. Further Section 52 NDPS Act provides (1)Any officer arresting a person under Section 41, Section 42, Section 43 or Section 44 shall, as soon as may be, inform him of the grounds of such arrest.
10. In the present case, the accused produced the charas to the deputy superintendent jail no. 4. at his office. The testimony of Deputy Superintendent goes unrebutted. Apparently, the Jail Superintendent was the gazzetted officer before whom charas was recovered from the possession of the accused. Therefore, it can not be said that the search of the accused was not conducted in front of gazetted officer. The testimony of PW5 namely, warden Sanjeev Kumar finds corroborated from the testimony of Deputy Superintendent M.P.S Bali and seizure memo Ex. PW4/A. The notice as required under section 57 NDPS Act was given to the ACP. The investigation officer fulfilled all the procedural requirements. The testimonies of other prosecution witnesses stand the test of FIR No.293/04 4/6 cross examination and nothing favorable to the accused could be elicited from the mouth of these witnesses.
11. Thus, on the basis of the aforesaid discussion, I am of the considered view that the prosecution has been successful in proving its case beyond all reasonable doubts. Accordingly, the accused is convicted of offence under Section under Section 20 (b) (ii) (a) of NDPS Act.
Be heard separately on point of sentence.
Announced in the open (RAJESH MALIK) Court on 03.08.11 MM ( West)-05/NEW DELH FIR No.293/04 5/6 FIR No. 293/04 PS Tilak Nagar State Vs. Kailash @ Deepak 03.08.11 Present: Ld. APP for the State. Accused on bail. Today, the case is fixed for order.
Vide separate judgment announced in the open court, the accused stands convicted for the offence under Section 20 (b) (ii) (a) of NDPS Act.
Arguments on sentence heard.
The convict submits that he remained in JC for about seven months in the present case. Accordingly, he prays for leniency.
Keeping in view the totality of circumstances and the period already undergone by the accused in judicial custody, I am of the opinion that ends of justice would be reasonable and adequately met, if convict is sentenced for the period already undergone by him in JC.
Bail bond stands cancelled. Surety, if any is discharged. Endorsement, if any be cancelled. Documents, if any be returned.
File be consigned to record room after due compliance.
(Rajesh Malik) MM/West-05/Delhi 03.08.11 FIR No.293/04 6/6