Delhi District Court
In The Case Of Ajmer Singh vs . State Of Haryana (2010) 3 Scc 746, ... on 4 November, 2011
IN THE COURT OF SH. NARINDER KUMAR
SPECIAL JUDGE, NDPS (CENTRAL): DELHI
SC No.100/08
State
Versus
Sh. Yogesh Kumar,
S/o Sh. Kishori Lal,
R/o H.No.BB 405, Gali No.15,
Ashoka Basti, Nabi Karim, Delhi. ......Accused
FIR No. 108/2008
PS Narcotics Branch
U/S 21/61/85 NDPS Act
J U D G M E N T
Yogesh Kumar has been facing trial for the offence punishable under Section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) on the accusation that 30.10.2008, he kept in his possession 400 grams of grey coloured powder seemingly heroin which on chemical analysis was found to contain Diacetylmorphine, Phenobarbital & Alprazolam 4.5%, 10.2% & 1.8% respectively.
Case of prosecution is that on 30.10.2008 the accused was apprehended from in front of Delite Diamond Cinema, on Asaf Ali Road, Delhi,on the basis of secret information received by SI Sunil Jain.
The SI disclosed apprised the accused that his search was to be conducted. The SI also apprised the accused of his legal rights of being searched in presence FIR No. 108/2008 Page1of24 of Gazetted Officer or Magistrate But the accused did not avail of this offer.
SI Sunil Jain then conducted search of the accused. Search of black colour polythene in the left hand of the accused led to recovery of one transparent polythene having some matiala colour substance. The substance was checked. It gave positive test for heroin, on being tested on the testing kit.
It is further case of the prosecution that the heroin recovered from the possession accused weighed 400 gms. From this quantity, two samples each of 5 gm were taken. Each sample was kept in polythene pouch and tied with a rubber band at his mouth. Both these samples were converted into two separate clothe parcels which were given Mark A & B. The remaining heroin was kept in the black colour polythene, referred to above, converted into cloth parcel and given Mark C. FSL form was filled. Seal of "5 BPS NB, Delhi" was used in sealing each parcel and form FSL. All these items were then seized.
SI Sunil Jain prepared rukka and handed over the same to Ct. Sohan Pal and on its basis FIR was got registered.
All the parcels and form FSL were also handed over to Ct. Sohan Pal alongwith carbon copy of the seizure memo with the direction that the same be produced before SHO. The SHO put his seal on all the sealed parcels, on form FSL and copy of seizure memo, signed all these items, mentioned particulars of the case thereon and deposited the same with the MHC(M).
Further investigation was assigned to SI Satyawan, who accompanied by HC Rajinder reached the place of recovery where SI Sunil Jain was present with other staff. Accused was also found present there. SI Sunil Jain handed over all FIR No. 108/2008 Page2of24 the documents and delivered custody of accused to SI Satyawan.
SI Satyawan prepared site plan, arrested the accused and conducted his personal search. The SI then accompanied by other staff left the spot and reached PS Narcotics Branch where accused was produced before the SHO Inspector M. L. Sharma who also made inquiries from the accused.
SI Satyawan deposited the articles, recovered on personal search of accused Reports under Section 57 of the Act regarding arrest of accused were put up the same before the SHO for onward transmission to the Sr. officers.
On 07.11.2008, HC Mahesh Kumar got sent sealed parcel alongwith FSL form to laboratory, and the same were deposited at the labortory against receipt with seals intact.
Charge
2. Prima facie case having made out, charge for an offence punishable under Section 21 of the Act was framed against the accused on 29.01.2009. Since accused pleaded not guilty and claimed trial, prosecution was called upon to lead its evidence.
Prosecution Evidence
3. In order to prove his case, prosecution has examined following witnesses : PW1 Sh. Om Parkash - To prove arrest of the accused and recovery. PW2 HC Kamal Kumar - To prove deposit of one sealed parcel alongwith FSL form at FSL Rohini after having collected the same on 07.11.08 from MHC(M).
FIR No. 108/2008 Page3of24
PW3 Ct. Sohan Pal - To prove arrest of the accused and recovery.
PW4 HC Jaivir Singh, the concerned Duty Officer, to prove copy of FIR Ex.PW4/A and entries on DD No.8A, 11A, 12A, 13A and 15A, all dt.30.10.08.
PW5 HC Mahesh Kumar, the concerned MHC(M) who dealt with case property pertaining to this case PW6 Inspector M.L.Sharma the concerned SHO.
PW7 HC Om Parkash - To prove receipt of DD No.7A in the office of ACP, Narcotics Branch, and also to prove two special reports.
PW8 SI Satyawan To prove the investigation conducted by him after registration of the case.
PW9 SI Sunil Jain to prove arrest receipt of information, arrest of accused, recovery of contraband and registration of case.
Statement of accused
4. When examined under Section 313 CrPC, accused denied all the incriminating circumstances appearing in evidence against him and pleaded false implication. Plea of the accused reads as under:
"It was the day of Bhaiya Duj at about 10/10.15 a.m. I stepped out of my house to go to the market to buy sweets as ultimately I was to go to my inlaws house. Narcotic staff apprehended me from near cremation ground and took me to the PS Shakarpur. Nothing incriminating was recovered from me. I have FIR No. 108/2008 Page4of24 been falsely implicated. After he was picked up by the police from near cremation ground."
Despite opportunity, accused has not led any evidence in defence.
5. Arguments heard. File perused.
6. Learned Additional Public Prosecutor has contended that prosecution has fully established its case against the accused regarding recovery of the contraband, drawing of samples, despatch of the sample to the office of Laboratory with seals intact, and that on analysis the contents of the sample were found to be Diacetylmorphine, Phenobarbital & Alprazolam 4.5%, 10.2% & 1.8% respectively. He has further submitted that this is a case of complete compliance with the provisions of section 42, 50 and 57 of the Act and that the accused deserves to be convicted and sentenced for the offence under Section 21 of the Act.
Compliance with provisions of Section 42
7. Learned defence counsel has contended that the senior officers were not informed about the secret information said to have been received by SI Sunil Jain, which is violation of Sec.42(2) of the Act, and entitled the accused to acquittal.
Accused is alleged to have been apprehended on 30.11.08 at about 11.45 in the area of Daryaganj, on the basis of information received by SI Sunil Jain from a secret informer on that very day at about 10.00 a.m. Section 42(2) of the Act provides that where an officer takes down any information in writing under subsec.(1) or records grounds for his belief under FIR No. 108/2008 Page5of24 the proviso thereto, he shall within seventytwo hours send a copy thereof to his immediate official superior.
As regards receipt of information prosecution has examined SI Sunil Jain PW9. According to PW9, on 30.10.08 while he was present at his office i.e. at PS Narcotics Branch, at about 10.00 a.m. one informer came to him and told that a person namely Yogesh who indulges in supply of heroin in Delhi would come in the area opposite to Delite Diamond Cinema, on Asaf Ali Road, Delhi in between 11.00 a.m. to 12'noon to supply smack to someone. According to witness, he inquired the matter from the informer and then disclosed the contents of the information to Inspector, SHO present in the police station at that time. He also produced the informer before the SHO. In turn, the SHO made inquiry from the informer and passed on the information to ACP Sh. M.S. Dabas, telephonically. The ACP then instructed for conducting a raid. In this regard, information was recorded vide DD No.7A, which is Ex.PW7/B. This information reduced into writing was also put up before the SHO.
To support the statement of PW9 SI Sunil Jain prosecution has examined Inspector Sh. M.L. Sharma as PW6. According to PW6, on 30.10.08, while he was posted at PS Narcotics Branch, at about 10.15 a.m., the secret informer accompanied by SI Sunil Jain came to his office and he was informed that Yogesh Kumar, who indulged in supply of heroin would come opposite to Delite Diamond Cinema in between 11.00 a.m. to 12'noon. According to witness, he made inquiries from the informer and satisfied himself. Then he informed ACP Narcotics Branch Sh. M.S. Dabas telephonically and ACP instructed that raid be FIR No. 108/2008 Page6of24 conducted immediately. This information was recorded U/s 42 of the Act, vide DD No.7A Ex.PW6/A. The DD entry was then produced before him at 10.30 a.m. According to this witness, he forwarded this DD entry to the ACP, Narcotics Branch. Accordingly, PW6 has made statement in consonance with the statement made by PW9 SI Sunil Jain.
A perusal of DD no.7A Ex.PW7/B would reveal that it contains the factum of receipt of information by SI Sunil Jain from the secret informer about expected arrival of a person namely Yogesh for supply of heroin at Delhi, in the area of Delite Diamond Cinema, Asaf Ali road; that SI Sunil Jain verified the information from the secret informer and then passed over the information to SHO at 10.15 a.m. and the SHO also satisfied himself; that the ACP was then informed about information and the ACP accordingly directed them for conducting raid. Ex.PW7/A bears signatures of SHO with date 30.10.08. This goes to show that the information recorded by SI Sunil Jain in the form of this DD entry was also placed in writing before SHO.
This DD entry also bears receipt no.1533 of 30.10.08 in proof of its receipt in the office of ACP/N &CP. The DD entry bears signatures of ACP at point X. PW7 HC Om Parkash has supported the case of prosecution in proof of receipt of DD no.7A in the office of ACP. Statement of PW7 has gone unchallenged for want of cross examination.
Therefore in view of the above testimony of PW6, PW7 & PW9 and contents of the DD entry No.7 A, this court finds that this is a case where compliance has been made with the provisions of Sec. 42(2) of the Act.
FIR No. 108/2008 Page7of24
Arrest of accused and recovery
8. It is case of prosecution that the police party consisting of SI Sunil Jain, Ct. Om Parkash, Ct. Joginder, Ct. Sohan Pal accompanied by the secret informer reached the disclosed place. SI Sunil Jain was having field testing kit, IO bag and electronic scale.
According to PW9, SI Sunil Jain, party constituted by him reached the bus stand Shakurpur Chungi. On the way, he asked persons present there to join the raiding party. But none of them came forward to join the party. Ultimately, on reaching the disclosed place they took position at about 11.40 a.m., Yogesh (accused) was seen coming from the side of NDRS. The informer verified identity of the accused and left the spot.
Further according to the witness, the accused came in front of the Delite Diamond cinema, waited there for someone for 3/4 minutes and then started to go back. It is was about 11.45 a.m. when the witness apprehended the accused with the help of other members of raiding party. After disclosing his identity the witness apprised the accused of his legal right.
According to the witness, he told the accused about the information he had against him regarding possession of smack and that his search was to be conducted. He then apprised the accused of his legal right of calling of Gazetted Officer or a Magistrate for the purposes of his search and that for this purpose he could be produced before Gazetted Officer or Magistrate. Further according to SI Sunil Jain, he then offered his search, of his companions and of company vehicle. In this regard, notice Ex.PW1/A was prepared. Its copy was FIR No. 108/2008 Page8of24 served upon the accused. The accused then recorded on the notice itself his refusal to avail of the aforesaid right. This writing is Ex.PW1/B. To the same effect is statement of PW1 HC Om Parkash, PW3 Ct. Sohan Pal. A perusal of notice Ex.PW1/A would reveal that it bears attestation of HC Om Parkash and Ct. Sohan Pal. It also bears signatures of SI Sunil Jain. Copy of this notice was served upon the accused at the spot. This fact stands proved from personal search memo Ex.PW1/E which depicts that on personal search of the accused conducted by SI Satyavan who took over investigation from SI Sunil Jain after registration of the case, a carbon copy of this notice U/s 50 of the Act and Rs.150/ were recovered.
Vide this notice Ex.PW1/A, the accused was apprised of the information received against him and that since there was possibility of recovery of heroin from its possession, a Gazetted Officer or a Magistrate could be called for his search. He was further informed about his legal right of being searched in presence of Gazetted Officer or a Magistrate.
Ex.PW1/B is the reply given by the accused. It bears signatures of the accused and also bears attestation of HC Om Parkash and Ct. Sohan Pal. Even otherwise, it is well settled that provisions of Sec.50 of the Act are applicable only in case of search of person, but herein case of prosecution is that he was carrying a polythene in his left hand which led to recovery of contraband.
It is in the statement of PW9 SI Sunil Jain that he requested 10/12 persons from the public to join the proceedings but none came forward and as such he conducted search, which led recovery of black colour polythene from his left FIR No. 108/2008 Page9of24 hand. One transparent polythene having some matiala colour substance tied with a rubber band was recovered from the black colour polythene. The substances was checked, it gave positive test of heroin when tested with the use of filed testing kit. SI Sunil Jain further deposed that heroin when weighed was found to be 400 grams. From this quantity, two samples each of 5 grams were drawn. Each sample was kept in a polythene packet, then tied with a rubber band. The parcels so prepared were given Mark A and B. The residue was again kept in the black colour polythene, recovered from the accused, it was also converted into a parcel and given Mark C. Form FSL was filled. Further according to SI Sunil Jain, he affixed seal of "5 BP NB DELHI" on each of the parcel and form FSL. Seal was then handed over to Constable Om Prakash. These items were seized vide memo Ex PW3/C. A perusal of the statement of PW1 HC Om Prakash and PW3 Sohan Lal would reveal that both of them have supported the statement of PW9 SI Sunil Jain regarding recovery of the contraband, drawing of sample and sealing of samples in two separate parcels and the residue in another parcel, with the aforesaid cell.
They have also deposed about affixing of impression of the seal on FSL Form, which was filled at the spot. Both of them also proved recovery memo Ex PW1/C. HC Om Prakash ( PW1) deposed about delivery of the seal, to him after it was used by SI Sunil Jain in sealing the three parcels and its impression put on form FSL.
A perusal of recovery memo Ex PW1/C makes it evident about its FIR No. 108/2008 Page10of24 attestation by the two witnesses PW1 HC Om Prakash and PW3 Ct. Sohan Pal. The factum of use of seal, referred to above, on the three parcels and affixation of impression of the seal on Form FSL, finds mention in this memo. It also finds mention in this document that after use, seal was handed over to HC Om Prakash.
Despatch of rukka and registration of case
9. The case of prosecution is that rukka was sent from the spot through Ct. Sohan Pal and he got this case registered. Constable was also handed over above referred to three parcels and form FSL and seizure memo, which he handed over to the SHO on the reaching the police station.
PW9 SI Sunil Jain deposed to have prepared rukka Ex PW9/A and to have handed over the same to Ct. Sohan Pal. He further deposed about handing over of the parcels, Form FSL and carbon copy of seizure memo to Ct. Sohan Pal with direction to that he shall hand over the rukka to the Duty Officer and the remaining items to the SHO. Ex PW9/A bears the date of its despatch from the spot as 30.10.2008 and the time of despatch is 02.45 pm. Ex.PW4/C is the copy of DD no.11A recorded at the police station at 3.15 p.m. regarding arrival of Ct. Sohan Pal in the official vehicle an to have handed over rukka sent by SI Sunil Jain; that on his basis FIR no.208/08 i.e. the present case came to be registered. Ex.PW4/A i.e. copy of FIR reveals that information i.e. tehrir reached the police station at 3.15 p.m. and present FIR came to be registered on its basis; that the investigation was assigned to SI Satyavan who left the police station for the spot in the company of HC Rajinder Singh in the FIR No. 108/2008 Page11of24 above referred to official vehicle.
Ex.PW4/D is the copy of DD no.12A recorded at 3.55 p.m. to the effect that Ct. Sohan Pal produced before Inspector M.L. Sharma SHO, three parcels bearing mark A, B C, form FSL and carbon copy of recovery memo; that these were bearing seals of 5BPSNB Delhi; that the inspector put his seal bearing impression of 1SHONBR Delhi aforesaid items i.e. three sealed parcels and form FSL; that FIR No.108/08 was recorded on the three sealed parcels and the copy of the recovery memo; that MHC(M) Mahesh Kumar was called with register no.19 and the Inspector handed over to him the above referred to items i.e. three sealed parcels, form FSL and carbon copy of recovery memo ; that MHC(M) made entry in this regard in register no.19. It is significant to note that DD No.12A was recorded by the SHO himself. It was also signed by him the SHO also signed the relevant entry in register no.19. The aforesaid fact finds supported from the statement of PW3 Ct. Sohan Pal. According to PW3 on reaching the PS he handed over the above referred to items i.e. 3 sealed parcels, form FSL and copy of memo to Inspector SHO Sh. M.L. Sharma who in turn affixed his seal on the same, mentioned number of the FIR and also put his signatures on the articles. Further according to Constable, Inspector then called MHC(M) HC Mahesh Kumar and handed over the aforesaid items to him (MHC(M)) for deposit in malkhana, thereupon MHC(M) made entry in register no.19.
PW4 HC Jaibir Singh, the concerned Duty Officer has proved recording of DD No.12A dt.13.10.08 Ex.PW4/D by Inspector M.L. Sharma, regarding FIR No. 108/2008 Page12of24 deposit of the case property and also DD no.11A about recording of FIR no. 108/08 on the basis of rukka sent by SI Sunil Jain through Ct. Sohan Pal.
PW5 HC Mahesh Kumar is the concerned MHC(M). According to PE5 on 30.10.08 at about 3.35 p.m. SHO called him to his office with register no.19. When he reached the office of SHO, the SO handed over to him three sealed parcels bearing seal of 5BPSNB Delhi and 1SHONBR Delhi form FSL bearing impression of seals as well as signatures of the SHO, and carbon copy of seizure memo. PW5 has proved entry at DD No.7A made in register no.19 in this regard and further that this entry was signed by the SHO.
A perusal of Ex.PW5/A i.e. copy of entry no.878 in register no.19 would reveal that it is in respect of deposit of the case property, referred to above with MHC(M) - PW5 of Inspector M.L.Sharma, SHO. It also bears signatures of the Inspector at point X. This fact has been proved by Inspector M.L. Sharma while appearing in the witness box as PW6. According to Inspector, at about 3.17 p.m. Ct. Sohan Pal came to him at his office and handed over three sealed parcels Mark A, B & C, form FSL and copy of seizure memo. Thes three sealed parcels were found sealed with seal bearing impression 5BPSNB Delhi and 1SHONBR Delhi. Further according to witness, he collected particulars of the case from Duty Officer and mentioned the same on these three sealed parcels, form FSL and copy of seizure memo. Then he affixed his own seal bearing impression i.e. 1SHONBR Delhi on each parcel. He also affixed seal on form FSL. He also deposed to have put his signatures on all these items and then handed over the same to MHC(M) vide entry Ex.PW5/A, which too was initialed by him.
FIR No. 108/2008 Page13of24 Inspector also proved all this by deposing that he had lodged DD No.12A with Duty Officer. All this lends corrboration to the version of prosecution.
SI Satyavan is the IO who took up investigation after registration of the case. While appearing in court as PW8 he deposed about his departure from police station in the company of HC Rajinder on 30.10.08 inthe official vehicle and his arrival at the spot by 3.45 p.m. He further deposed about presence of the accused at the spot where SI Sunil Jain was present with his staff. After he was proved about the case, he handed over documents prepared by SI Sunil Jain. Custody of the accused was also delivered to the witness. According to the witness, he prepared rough site plan Ex.PW8/A depicting the place of occurrence. He also proved recording of statement of Ct. Om Parkash. PW8 further deposed about arrest of the accused and conducting of his personal search vide memo Ex.PW1/D and Ex.PW1/E. Personal search memo Ex.PW1/E bears attestation of SI Sunil Jain and Ct. Om Parkash. Both these witnesses have deposed about conducting of personal search in their presence at the spot by SI Satyavan. Arrest memo Ex.PW1/D establishes that the accused was arrested on 30.10.08 at 6.00 p.m. at the place opposite Delite Diamond Cinema, Asaf Ali Road by SI Satyavan. As per entry in Column No.9, the police informed Smt. Mamta wife of the accused about his arrest.
Memo Ex.PW4/F recorded at the police station at 7.30 p.m. is to the effect that the accused was brought to the police station at about 7.10 p.m. and produced before the SHO who in turn inquired from the accused and satisfied FIR No. 108/2008 Page14of24 himself. Articles recovered from the personal search memo of the accused were deposited in the Malkhana as further finds mention in the documents.
PW8 SI Satyavan has proved production of the accused before SHO of the police station at 7.10 p.m. and also about deposit of articles recovered on personal search of the accused, with MHC(M) vide DD No.15A Ex.PW4/F recorded a 7.30 p.m. PW1 HC Om Parkash, PW3 Ct. Sohan Pal and PW9 SI Sunil Jain have also deposed about these two facts. PW6 Inspector M.L. Sharma has also supported the case of prosecution in this regard by deposing that on 30.10.08 at about 7.10 p.m. the accused was produced before him by SI Satyavan and further that he satisfied himself after making inquiries.
Discrepancies
10. Learned defence counsel has pointed out that there are material contradictions in the statements of PW8 & PW9 as to the time of arrival of PW8 at the spot after registration of the case. It has been pointed out that according to PW8 SI Satyawan, who subsequently took over investigation that he received copy of FIR at 7.25 p.m. But, on the other hand, PW9 SI Sunil Jain stated in his cross examination that SI Satyawan accompanied by HC Rajinder reached the spot at 3.45 p.m. The contention raised by learned defence counsel is that from the statements of these two witnesses has become doubtful as to how SI Satyawan could reach the spot at about 3.45 p.m., when he had received copy of FIR at 7.25 p.m. This contention raised by learned defence counsel is without merit. It is in FIR No. 108/2008 Page15of24 the statement of PW8 SI Satyavan that he reached the spot at 3.45 p.m. Even PW9 SI Sunil Jain deposed tha SI Satyavan reached the spot a 3.45 p.m. DD entry no. recorded at 3.15 p.m. reveals that copy of the FIR was handed over to SI Satyavan at about 3.15 p.m. It appears that while recording statement of PW8, the time of his having received copy of FIR has been recorded as 7.25 p.m. on account of typographical mistake, as rightly submitted by learned Addl. P.P. for State.
Learned defence counsel has pointed out that there are contradictions in the statements of the witnesses regarding mentioning of FIR number on the parcels. PW3 Ct. Sohan Pal has stated that Duty Officer had come to the office of the SHO to inform him about the FIR number, but the SHO has stated that he had sent Ct. Sohan Pal to the Duty Officer to collect the FIR number.
PW3 Ct. Sohan Pal stated in his cross examination that Duty Officer had come to the SHO to inform him about the FIR Number. When the SHO had called the Duty Officer from his room itself. PW6 Inspector M.L. Sharma, concerned SHO stated to have send Ct. Sohan Pal to get number of FIR and that the Constable came to his office and told about the number of the FIR. No doubt this is a contradiction in the statements of the two witnesses but the same is not material one so as to disbelieve the prosecution versions regarding arrest and recovery of contraband from the accused.
Nonjoining of witness from the public
11. It has also been contended by learned defence counsel that no witness from the public was associated after apprehension of the accused and before the FIR No. 108/2008 Page16of24 search.
It is true that no witness from the public has been cited or examined as a witness and the prosecution version is based on the statements of police officials. 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." Herein, when the secret information was received at about 10.00 a.m. and SI Sunil Jain formed a raiding party and reached the spot at about 11.00 a.m. after having left the police station at 10.45 a.m. vide DD no.8A and there was scarcity of time, time of expected arrival of the accused being in between 10.00 a.m. to 12'noon, non joining of witness from the public at that time does not adversely affect the case of prosecution.
FIR No. 108/2008 Page17of24 Even otherwise PW1 deposed in court that SI Sunil Jain had asked 4 passengers at Shakarpur Chungi bus stop and 4 passers by at LNJP hospital to join the raiding party after telling them about the secret information but no one agreed and that rather they left expressing their their genuine difficulties. PW3 Ct. Sohal Pal stated that SI Sunil Jain had asked 4 passengers at Shakarpur Chungi, Bus stop and 4 passersby at LNJP hospital. He further stated that 1012 public persons who had gathered there, were asked to join the proceedings but no one agreed and that they left the spot. PW9 SI Sunil Jain has made statement in consonance of the statement made by PW3 & PW4 in this regard.
As noticed above, there is no discrepancy or material contradiction in the statements of the Pws or any material to doubt their presence on the given date time and place of arrest of the accused and recovery from his possession. Therefore, this court finds that nonjoining of the witness from the public does not adversely affect the case of prosecution.
Compliance with provisions of Sec.57
12. In proof of compliance with this provision, prosecution has examined PW6 Inspector M.L. Sharma, PW8 SI Satyavan and PW9 SI Sunil Jain. They have proved reports Ex.PW6/B & Ex.PW6/C prepared in this regard. Special reports are available on record. These bear the forwarding note of the SHO to the ACP and also the forwarding note appended by the ACP. Receipt of these reports in the office of ACP finds mention in Ex.PW7/E i.e. diary of correspondence maintained at the office of ACP.
FIR No. 108/2008 Page18of24
Expert Evidence
13. A perusal of report Ex.PX received from FSL would reveal that the contents of the sample were delivered at the laboratory on 07.11.08 through Ct. Kamal and on analysis the expert observed as under :
(i) On Chemical, TLC & GC examination, exhibit 'A' was found to contain Paracetamol, Caffeine, Acetylcodeine, Monoacetylmorphine, Diacetylmorphine, Phenobarbital & Alprazolam.
(ii) However, on Gas Chromatography examination, exhibit 'A' was found to contain Diacetylmorphine, Phenobarbital & Alprazolam 4.5%, 10.2% & 1.8% respectively.
To rule out possibility of tampering with the contents of the sample, as noticed above, prosecution examined PW9 SI Sunil Jain, PW1 HC Om Parkash, PW3 Ct. Sohan Pal and PW6 Inspector M.L. Sharma. It is evident from their statements that the case property was not allowed to be tampered with till the same reached the MHC(M).
Ct. Kamal has stepped into witness box as PW2. It is in his statement that after having collected the sealed parcel bearing MarkA and FSL form from MHC(M) on 07.11.08, he deposited the same at FSL Rohini on the same day with seals intact. Statement of PW2 has gone unchallenged for want of cross examination.
In FSL report, the expert specifically mentioned that the seals on the samples were intact and tallied with the specimen seals, as per forwarding letter.
So prosecution has fully established that contents of the sample were not allowed to be tampered with before the same reached the safe hands of the FIR No. 108/2008 Page19of24 official of the FSL.
Conclusion
14. In view of the above discussion, this court finds that prosecution has fully proved its case against the accused. Since he kept in his possession heroin on 30.11.08, Yogesh Kumar, accused is held guilty of the offence punishable under Section 21 of Narcotics Drugs & Psychotropic Substances Act, 1985.
The accused is therefore convicted for the offence under Section 21 of Narcotics Drugs & Psychotropic Substances Act, 1985.
Let the convict be heard on the point of sentence.
Announced in Open Court
on 04.11.2011 (Narinder Kumar )
Special Judge, NDPS (Central)
Delhi.
FIR No. 108/2008 Page20of24
IN THE COURT OF SH. NARINDER KUMAR
SPECIAL JUDGE, N.D.P.S. (CENTRAL): DELHI
S. C. No.
State
Versus
Sh. Yogesh Kumar,
S/o Sh. Kishori Lal,
R/o H.No.BB 405, Gali No.15,
Ashoka Basti, Nabi Karim, Delhi. ......Accused
FIR No. 108/2008
PS Narcotics Branch
U/S 21 NDPS Act
ORDER ON SENTENCE
Present: Sh. Rajiv Mohan, Learned Addl. P.P. For State.
Accused on bail with counsel
Heard on the point of sentence. Convict Yogesh Kumar submits that he is years of age, having ...................... and that leniency be shown on the point of sentence.
learned counsel for convict has also prayed for lenient view on the point of sentence having regard to the quantity which is not commercial one, submissions put forth by the convict and that he remained in custody during investigation and enquiry for a period of ......................since 03.09.2008.
Learned Additional Public Prosecutor for the State has not disputed that the quantity of narcotic drug recovered from the possession of the convict is FIR No. 108/2008 Page21of24 not commercial but submitted that having regard to the serious nature of the offence and the impact of drugs on the society, the convict does not deserve any leniency.
Section 21(b) of the Act provides punishment by way of rigorous imprisonment which may extend to ten years, and with fine which may extend to 1 lakh rupees. The offence under Narcotics Drugs & Psychotropic Substances is serious in nature. The convicts were carrying heroin for supply in the area of Delhi.
Having regard to the quantity of the heroin which is.........................................one but much greater than smaller quantity, this Court deems it a fit case to sentence the convicts to rigorous imprisonment for a period of five years and to pay fine of Rs.50,000/ each. Accordingly, both the convicts Mukesh Sharma and Parveen Kumar Rajguru are hereby sentenced to rigorous imprisonment for a period of five years with fine of Rs.50,000/ each or in default of payment of fine, the defaulter shall undergo further rigorous imprisonment for five months, for the offence under Section 21 ( b) of the 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.
While parting with the judgment, it may be mentioned here that although the convicts have been sentenced to rigorous imprisonment as provided under the Act, this Court finds that such like convictsdrug traffickers also need to be sensitized about the illeffects of narcotic drugs in which they deal, so as to FIR No. 108/2008 Page22of24 give a jolt to their conscience, by making them feel and realize that how many persons do suffer at their hands because of consumption/intake of narcotic drugs and psychotropic substances, which they supply.
Drug addiction is not a new phenomenon, but it has spread like an epidemic. It has affected people of each strata of society. Just one puff or intake is sufficient to make one, a drug addict. A drug addict finds it difficult to survive if unable to get next dose of drug. In case of a drug addict, not only he suffers pain and agonies, his family members like parents, sisters and brothers also feel the pain and humiliation, while having all sympathies for him. That is why, this Court has felt the need of sensitization of such like drug traffickers, of the conditions of drug addict in which he finds himself, wherever he is, either struggling for his life at his house or somewhere in the hospital. Convicts in such like cases, while they undergo sentence in jail, can be taken to Hospitals, Drug Deaddiction Centres, periodically, or at the jail itself, they can be shown visuals of such instances, so that they may themselves see the pain and agony of victims of drug menace, as the visuals would leave indelible impression on their minds. Although Narcotics Drugs and Psychotropic Substances Act does not contain any such provision, it is for government and all the concerned authorities, including Prison authorities to ponder over as to the manner in which suchlike drug traffickers can be sensitized of the pains and agonies of a drug addict, so that when such like convicts become free from jail, they do not opt for such like nefarious trade.
Case property be disposed of in accordance with law on expiry of period FIR No. 108/2008 Page23of24 for Appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 22.10.2011 (Narinder Kumar )
Special Judge, NDPS (Central)
Delhi.
Announced in Open Court
on 13.10.2011 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
FIR No. 108/2008 Page24of24