Delhi District Court
State vs 1. Kishan Kumar on 11 November, 2009
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IN THE COURT OF SMT SARITA BIRBAL: ASJ:
SPL. JUDGE (NDPS ACT):KARKARDOOMA COURTS:
DELHI
S.C. No: 40/02
State Versus 1. Kishan Kumar
s/o Shri Mahender Prakash
r/o 2/116,
Mohalla Sahatibhan Lal
Farukhabad, UP
2. Duli Chand
son of Giri Raj Singh
r/o A 31, Shashi Garden,
Mayur Vihar. Delhi
FIR No: 24/02
P.S.: Narcotics Branch
U/s. 21/29 of the NDPS Act
Date of institution of charge sheet 19.07.2002
Date on which the judgment was reserved 03.11.2009.
Date on which judgment has been delivered: 10.11.2009.
JUDGMENT
1. It is the case of the prosecution against the accused persons namely Kishan Kumar and Duli Chand that on 19.04.2002 -:2:- at about 1.55 p.m. near entry gate outside Chand Cinema Kalyanpuri accused Kishan Kumar had supplied 1½ kilograms smack to accused Duli Chand. Both accused were apprehended by the police pursuant to secret information and accused Duli Chand was found in possession of said 1½ kilograms of Heroin (Smack), a contraband without any licence and permit. It is also the case of the prosecution that the specimen sample of the contraband allegedly recovered from the possession of accused persons was sent to CRCL and as per report dated 27.05.2002 the sample was found to be containing 59.1% diacetylmorphine. In view of law laid down by Hon'ble High Court in Ansar Ahmed & Ors. Vs. State (Govt of NCT of Delhi (123 (2005) Delhi Law Times 563), the total quantity of diacetylmorphine in recovered smack was 886.5 grams which is a commercial quantity.
2. In brief, the facts of the prosecution case as revealed from report u/s 173 Cr. P.C. are as follows:-
On 19.04.2002 while SI Attar Singh was present in the -:3:- police station at about 11.45 a.m. a secret informer came to the police station and informed the Constable Virender that one Duli Chand, resident of Shashi Garden, Mayur Vihar indulging in supply of heroin, would come on that day between 1.30 p.m. to 2 p.m. in front of Chand Cinema, Kalyanpuri, to take supply of heroin from one Kishan Kumar, resident of UP, who is also indulging in supply of heroin. Said informer was produced before SI Attar Singh who after satisfying himself conveyed the said information to SHO Inspt. S.P. Kaushik said informer was produced before the SHO who after satisfying himself conveyed the said information to ACP
- Shri M.S. Chikara through telephone in his office who ordered to conduct a raid. DD No. 20 was recorded about this information. A raiding party consisting of SI Attar Singh, Head Constables Yudhbir Singh, Harvinder Singh, Harbir Singh and Constables Naresh, Virender Kumar, Virender, Ajit Singh and Ravinder was organised and they left the police station with informer. The said party reached near the spot at about 1.15 p.m. At the spot seven -:4:- passers-by and three rehriwalas were asked to join the proceedings but none of them agreed. At about 1.40 p.m. accused Duli Chand came and stood in front of Chand Cinema. After about ten minutes accused Kishan Kumar also came there having purple coloured weighty polythene in his hand. Both talked each there for about five minutes. At about 1.55 p.m. accused Kishan Kumar handed over the said polythene to accused Duli Chand. Both the accused persons were apprehended by the police. SHO was apprised about the facts who ordered to proceed as per Law. Before commencing further proceedings again passers-by were requested to join the proceedings but none of them agreed. Contents of the secret information were conveyed to the accused persons. Notices under section 50 NDPS Act were served on the accused persons by which they were apprised that they have legal right that they can be searched before Gazetted Officer or Magistrate. It was also offered that accused persons can take search of any member of the raiding party. Both accused persons did not avail the option and refused the same.-:5:-
Then accused Duli Chand was searched and from the polythene holding by accused 1½ kilograms Heroin (Smack), a contraband, was recovered. Two samples of five grams each Mark A & B were taken out from the contraband recovered from the accused. Samples and the remaining contraband Mark C were separately packed, sealed with the official seal of ASY. CRCL Form was also filled in at the spot using the same seal which was used on pullandas. Seal after use was handed over to Constable Virender. All these items were seized vide seizure memo. Then search of accused Kishan Kumar was conducted but nothing incriminating was recovered.
Ruqqa was prepared and sent to the police station through Constable Ajit Singh for getting the case registered and accordingly the case was registered under section 21/29 NDPS Act. Case property, CRCL Forms and copy of the seizure memo were also handed over to the said Constable for handing over to the SHO and the SHO deposited the same with MHCM in intact condition after putting his official seal impression upon them. Further investigation -:6:- of this case was entrusted to SI Bhoop Singh who also reached the spot. Accused persons and the documents were handed over to him and then the accused persons were arrested. Sample was sent to CRCL for chemical analysis. Accused persons were chargesheeted for the offence punishable under section 21/29 of the NDPS Act.
On receipt of Result from CRCL it was placed on the judicial file.
3. Vide orders dated 21.01.2004 charge was framed against the accused persons for offence punishable under section 21/61/85 of the NDPS Act read with section 29 NDPS Act to which they pleaded not guilty and claimed trial.
4. Prosecution has examined eleven prosecution witnesses in support of its case.
5. PW 1 - Head Constable Omkar Singh, duty officer, proved copy of FIR Ex. PW 1/A recorded by him on receipt of ruqqa of this case. This witness also proved DD entries no. 30 & 33 as Ex. PW 1/B & C.
6. PW 2 - Constable Ajit; PW 8 - Inspt. Attar Singh -:7:- and PW 9 - Constable Virender are the material witnesses of recovery.
7. All these witnesses have supported the prosecution case stating that in pursuance to the secret information raiding party was organised and reached at the spot. At about 1.40 p.m. accused Duli Chand came there and after about ten minutes co-accused Kishan Kumar also came there and both talked with each other for about five minutes. Accused Kishan Kumar was holding a bag in his hand which he handed over to accused Duli Chand. At about 1.55 p.m. at that time both accused persons were apprehended, contents of the secret information were conveyed to them, notices under section 50 NDPS Act Ex. PW 2/A & 2/B were served upon the accused persons. SI Attar Singh who was the head of the raiding party apprised the accused persons that they have legal right that they could be searched before Gazetted Officer or Magistrate. Accused pesrons were also offered that they can take search of any member of the raiding party. Accused persons did not avail this -:8:- opportunity and stated so in their reply Ex. PW 2/C & 2/D. On search of accused Duli Chand 1½ kilograms smack was recovered from the polythene which he was holding in his hand. Two samples of five grams each Mark A & B were taken from the contraband. Samples and the remaining contraband Mark C were separately packed, sealed with the official seal of ASY. CRCL Form was also filled in at the spot using the same seal which was used on pullandas. All these items were seized vide memo Ex. PW 2/E. Thereafter search of accused Krishan Kumar was conducted but nothing incriminating was recovered. Ruqqa Ex. PW 8/A was prepared and sent to the police station through Constable Ajit Singh for getting the case registered. Case property, CRCL Form and copy of the seizure memo were handed over to said constable for handing over the same to the SHO.
8. All these witnesses deposed that accused persons were arrested by SI Bhoop Singh (PW 6) who reached the spot as further investigation of this case was entrusted to him. -:9:-
9. All these witnesses further identified the case property of this case as Ex. P 1 to P 3.
10. PW 3 - ASI Virender Singh proved reports Ex. PW 3/A & B received in the Office of DCP under section 57 NDPS Act and produced before him on 20.04.2002 and 21.04.2002. This witness also proved the entry Ex. PW 3/C effected in original diary register in that regard.
11. PW 4 - Head Constable Vijay was posted as MHCM in PS Malkhana and stated that on 19.04.02 SHO Inspt. S.P. Kaushik gave him three parcels Mark A,B & C sealed with the seals of ASY and SPK with copy of seizure memo and three CRCL Forms which he deposited in PS malkhana. He also stated that on 01.05.02 as per directions of SHO sample mark A was sent to CRCL for chemical analysis and he did not tamper with case property or samples. He proved entries Ex. PW 4/A to D effected in register no. 19.
12. PW 5 - Inspt. S.P. Kaushik, the then SHO stated that -:10:- he affixed his seal SPK and put FIR number on the parcels produced before him and CRCL Forms. This witness also deposed that case property, FSL Forms and copy of the seizure memo were deposited by him with MHCM in intact condition. This witness also deposed that he also forwarded the reports under section 57 NDPS Act - Ex. PW 5/C & 5/D to ACP Narcotics.
13. PW 6 - SI Bhoop Singh is the second IO of the case who reached the spot after recovery and arrested the accused persons. This witness also handed over the report under section 57 NDPS Act Ex. PW 5/D to SHO for forwarding to senior officer regarding arrest of accused persons. This witness also deposed that he conducted the investigation and filed the challan in the court.
14. PW 7 - Constable Kuldeep Singh deposed that on 01.05.2002 he took the sample parcel to CRCL and deposited there in intact condition.
15. PW 10 - Shri K.C. Aggarwal, Chemical Examiner proved the CRCL report Ex. PW 6/K dated 27.05.2002 bearing his -:11:- signatures at point A.
16. PW 11 - Dr Madhulika Sharma, Asst. Director, chemical expert proved FSL report dated 03.04.2006 Ex. PW 11/A bearing her signatures at point A.
17. In their statements recorded under section 313 Cr.P.C. the accused persons have denied case of the prosecution in toto by stating that no such crime was ever committed by them. Accused Duli Chand further pleaded that on 18.04.02 while he was going on his two wheeler scooter with his daughter, due to traffic jam there was rush and no side could be given to police officials who were honking for giving side. Later on when the side was given on due time, police officials abused him and put him in their vehicle. It is also stated by accused that only at that time he came to know that they were police officials and later on he was implicated in this case falsely.
18. Accused Kishan Kumar in the statement under section 313 CrPC pleaded that in connection of his business of hand -:12:- embroidery and printing at Farukhabad he used to come to Delhi. On the day of incident while he was going to Gharoli and was present at Kondli turn for hiring an auto, an altercation with a person who was standing nearby him took place and he was taken to the Police Station and was implicated in this case falsely. This accused also pleaded that later on he came to know that the person with whom altercation took place was a police official. It is also stated that he did not know accused Duli Chand and he saw him only when he was produced in the court with him.
19. Both accused persons did not opt for defence evidence.
20. I have heard Ld. Addl. P.P. Shri Ashok Kumar for the State; Sh. S.K. Ahluwalia Advocate for accused Duli Chand Shri Sushil Sharma Advocate, Delhi Legal Aid for accused Kishan Kumar and have perused the record.
21. During arguments, ld counsel for the accused persons contended that earlier sample sent to CRCL was not drawn -:13:- from the contraband allegedly recovered from the accused Duli Chand as there is major difference of percentage of diacetylmorphyine in the sample which was earlier sent to CRCL for chemical analysis during investigation and the other sample sent from the case property to FSL, Rohini by the order of the court. It is also contended that samples Mark A & B are different from the alleged recovered contraband Mark C as clear from the statement of material recovery witnesses. It is also contended that prosecution has failed to produce original seals which were affixed on the sample parcels and case property for comparison and the same creates doubt about the case of prosecution. It is further contended that the prosecution has not been able to prove its case for want of independent witnesses despite their availability at the spot which is admittedly a public place being near Chand Cinema. It is also contended that statements of prosecutions witnesses are full of contradictions and the prosecution has failed to prove its case beyond reasonable doubts against the accused persons. Ld. counsel -:14:- for the accused Duli Chand has relied upon judgment reported as Rahul Saini Vs. The State [2006 VII AD (DELHI) 531].
22. On the other hand, ld. Addl. PP for the State submitted that prosecution has proved its case beyond doubts and all the mandatory provisions of Law have been complied with. Ld. Addl PP has also submitted that since all the prosecution witnesses have supported the case of prosecution, the accused persons are liable to be convicted for the charged offences. Ld. Addl PP for the State also submitted that testimony of police officials can not be rejected only on the ground that they belong to the police department. He further submitted that first report received from CRCL, Pusa Road Ex. PW 6/K regarding chemical analysis of sample of contraband recovered from accused is liable to be believed.
23. I have given my consideration to the contentions advanced by ld Addl PP for the State and ld counsels for the accused persons.
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24. In this case, material witnesses of recovery are PW 2 - Constable Ajit; PW 8 - Inspt. Attar Singh and PW 9 - Constable Virender. All these witnesses have admitted the availability of public witnesses at the spot. They have uniformly deposed that seven passers-by and three rickshaw pullers were requested to join the proceedings but none of them agreed and left without disclosing their names and addresses. All these witnesses also uniformly deposed that SI Attar Singh informed the SHO telephonically about the apprehension of accused persons. Public persons were asked to join the proceedings but none agreed. Thus, it can not be said that police had not made sincere efforts to join the public persons at the time of search and seizure of contraband.
25. It is well settled that the police officials are competent witnesses and conviction against the accused can be based on their sole testimony but an onerous duty has been cast upon the court to scutrtinise their statements very closely in order to form an opinion whether they are reliable and trustworthy. -:16:-
26. In judgment reported as Govt of NCT of Delhi Vs Sunil (2001) 1 SCC , 652 it is held that:
"It is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policeman also knew about it. It is hangover persisted during post independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police record are untrustworthy. As a preposition of law the presumption should be other way around. That officials acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain articles was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross examination of witnesses or through any other materials to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action as -:17:- unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
27. Reference can also be made to a judgment reported as Gyan Chand & another Vs. State and another (2005 Crl L. J. 3228 - Hon'ble Allahabad High Court), wherein it has been laid down by the Hon'ble Allahabad High Court that the court has to assess worth of such evidence from the facts available on record and if these statements inspire confidence, it has to be accepted by the court for purpose of conviction of accused. The relevant portion of the said judgment is as follows:
"It is true that the witnesses who have supported the prosecution version of the case are the witnesses from he department but the testimony of such witnesses can not be altogether discarded because they belong to the department and one of them is complainant of the case. The court has to assess the worth of such evidence from the facts and circumstances and other materials available on record and if these statements inspire confidence, it has to be accepted by the Courts for the purpose of recording the conviction of the accused."
28. In Ronald Larks Goontha Vs. State of Rajasthan -:18:- [1988 (2) Crimes 737], Hon'ble High Court of Rajasthan held as follows:
"that police officers are citizens and the public servants. Generally, it is expected that they perform their duties faithfully and sincerely. A presumption under section114 of the Evidence Act can be drawn that they perform their duties in the ordinary course of business faithfully and sincerely. Their evidence can not be discarded only on the ground that they are police officers."
29. In judgment reported as Gurcharan Singh @ Channi & Another Vs. State (1993 (2) RCR (Criminal) 696 the Hon'ble High Court of Delhi after taking note of judgment of Hon'ble High Court of Rajasthan in Ronald Larks Goontha's case (supra) held as follows:
"There is no dispute with the said proposition of law that the statements of the police witnesses are entitled to the same weight and the same consideration which is attached to the statement of a member of the public. However the impugned statement must inspire confidence to be relied upon in a particular case."
30. The prejudice to the accused caused due to non -:19:- examination of independent witness differs from case to case. It can not be said that mere non examination of independent witnesses by itself is sufficient to exonerate the accused. In the present case, as noted above, all the material prosecution witnesses have uniformly deposed that before the raid many public persons were requested to join the proceedings but none of them agreed and left the spot without disclosing their names. The testimony of prosecution witnesses are fully corroborated to each other without any contradiction. Thus, it can not be said that police had not made sincere efforts to join the public persons.
31. Under these circumstances, I do not find any reason to disbelieve the statements of prosecution witnesses on the ground that no independent public person joined the search and seizure proceedings.
32. Perusal of the record would show that sample mark A & B were drawn from the contraband allegedly recovered from the possession of accused. It is further the case of prosecution that -:20:- on 01.05.2002 sample Mark A was sent to CRCL for chemical analysis during investigation and report Ex. PW 6/K shows that 59.1% diacetylmorphine was found in the sample making the net quantity of diacetylmoprhine as 886.5 grams which is a commercial quantity as per entry 56 of the notification S.O. 527 (E) dated 16.07.1996 issued by the Central Government. During the trial of this case, vide order dated 16.02.06 passed by my ld predecessor a fresh sample was drawn from the case property allegedly recovered from the possession of accused and was sent to FSL, Rohini for chemical analysis. The FSL report dated 03.04.2006 (Ex. PW 11/A) shows that 0.93% diacetylmorphine was found in the sample making the net quantity of contraband as 13.95 grams which falls within the ambit of intermediate quantity.
33. There is a tremendous variation of percentage of diacetylmoprhine between the two samples which were sent for chemical analysis. PW 10 - Shri K.C. Aggarwal, Chemical Expert, also could not give the answer with certainty in this regard during -:21:- his statement in the court.
34. SI Attar Singh also admitted, during cross examination, that the sample was taken from upper layer of the case property and the case property was not mixed up before taking sample. PW 9 - Constable Virender also admitted that sample was taken from the top. This shows before taking the alleged samples Mark A & B the case property was not properly homogenised.
35. During evidence, my ld. Predecessor asked a question to Shri K.C. Aggarwal, PW 10, Chemical expert about variation of diacetylmorphine in two parcels and the witness replied the said question. The question and answer is as follows:
"Court question: What is your answer in this respect if the time difference between the drawing of two samples is one year, two years, three years, four years and five years?
Answer: I can not answer this question correctly as in as much as there is no such data available with me, however, due to deterioration on account of passage of time there may be a difference in the percentage of diacetylmorphine but the extent of that percentage I do not know."
36. During cross examination PW 2 - Constable Ajit and -:22:- PW 8 - Inspt. Attar Singh (the then SI) admitted that recovered contraband (smack) from the accused was of dark brown colour in powder form. During evidence PW 8 - Inspt. Attar Singh also admitted after seeing the sample parcels Mark A & B that the contents of these parcels are of dark black colour and in the shape of semi solid substance. He also admitted that the case property - parcel C is in the shape of solid substance of brown colour having white particles.
37. Under these circumstances, contention of ld defence counsel that the sample mark A was not drawn from the case property has some force and the CRCL report dated 27.05.2002 Ex. PW 6/K is liable to be disbelieved.
38. The FSL report Ex. PW 1/A dated 03.04.2006 indicates 0.93% diacetylmorphine was found in the sample drawn from the case property in the court making the net quantity of contraband as 13.95 grams. This report also shows sample parcel received in the FSL was in in tact condition and tallied with -:23:- specimen seal impression forwarded alongwith forwarding letter. Under these circumstances, I find no reason to disbelieve the FSL report dated 03.04.2006 Ex. PW 11/A and same is liable to be accepted.
39. PW 8 - SI Attar Singh and other members of raiding party uniformly stated that seal impression "ASY" was affixed on the sample parcels and the remaining recovered contraband. PW 5 SHO - S.P. Kaushik deposed that parcels and case property was produced before him and he affixed his seal SPK. Same was deposited with PW 4 - HC Vijay (MHCM) who also deposed that seals of ASY & SPK were found affixed on the parcels when the same were deposited in the malkhana. FSL report also shows that sample was received in sealed conditions and seals were intact. The case property i.e. allegedly recovered contraband and samples produced in the court first time during the evidence of PW 2- Constable Ajit was bearing the seals of ASY and SPK. All the link witnesses have fully supported the case of prosecution as far as -:24:- affixing of seals on the parcels is concerned. Both SI Attar Singh and SHO Inspt. S.P. Kaushik have categorically stated that they put their seal impressions on the parcels. Apart from this sealed sample was sent to FSL Rohini as per the order of court and same was sealed with the court seal. Under these circumstances, the contention of ld defence counsel that original seals were not produced in the court for comparison is of no help to the accused.
40. In the present case, the prosecution witnesses have corroborated each other on material particulars. There is no material contradiction on record in the statements of prosecution witnesses which could demolish the case of prosecution. Minor discrepancies in the statements of witnesses are of no help to the accused. In Siddiqua Vs. Narcotics Control Bureau (2007 Crl L.J. 1471 of Hon'ble High Court of Delhi) the Hon'ble High Court of Delhi observed that minor discrepancies are very natural to occur in testimony of different witnesses and testimony of witnesses can not be rejected on the ground that there were minor -:25:- discrepancies or contradictions. The witnesses have uniformly deposed that in pursuance to the secret information accused persons were apprehended, contents of the secret information were conveyed to them, notices under section 50 NDPS Act were duly served on the accused persons informing that they have legal right to be searched before the Gazetted Officer or Magistrate. Both the accused persons did not opt the same. Then on recovery of 1500 grams Smack, a contraband, was effected on search of the accused Duli Chand which was supplied to him by accused Kishan. Samples were drawn, samples and the remaining contraband were packed, sealed with the seal of the IO - ASY and then seized. All the items were also produced before SHO who also affixed his official seal SPK on the parcels and CRCL Form and same were deposited the same with MHCM.
41. Under these circumstances, the contention of ld counsel for the accused that statements of prosecution witnesses are full of contradictions is not tenable as there is no material -:26:- contradiction in the statements of prosecution witnesses which could demolish the case of prosecution.
42. The defence taken by the accused Kishan Kumar in his statement under section 313 CrPC that due to his some altercation with police official he has been implicated falsely in this case has no force. This plea was taken by the accused first time in his statement recorded under section 313 CrPC. No such suggestion was ever put to any of material witness. Rather accused has taken different stand at different point. During cross examination of SI Attar Singh, it was suggested that accused Kishan Kumar was lifted from the factory of one Hanif at Seelampur, Delhi. While during cross examination of PW 9 - Constable Virender it was suggested that accused Kishan Kumar was lifted on the way when he was going to house of one Mahesh to give his clothes for printing at Gharoli. Under these circumstances, the defence of accused Kishan Kumar is not believable.
43. Similarly the defence of accused Duli Chand also -:27:- seems to be an after thought and not believable. In statement under section 313 CrPC he has come forwarded with the plea that he was implicated while he could not give way to the police officials due to traffic jam. On the other hand, during cross examination of PW 6 - SI Bhoop Singh (IO) suggestion was put on behalf of this accused that accused persons implicated falsely while they were in police custody at police station.
44. Thus, it is clear that defence of accused persons is self contradictory and is liable to be disbelieved.
45. In view of above discussion and considering the evidence on record, it is proved that on 19.04.2002 in pursuance to the secret information received by Constable Virender, a raiding party was organised which left for the spot. At about 1.40 p.m. accused Duli Chand came and stood in front of Chand Cinema and started waiting for accused Kishan Kumar. After about ten minutes accused Kishan Kumar came there having purple coloured weighty polythene in his hand. Both talked with each other for about five -:28:- minutes. At about 1.55 p.m. accused Kishan Kumar handed over the said polythene to accused Duli Chand. Both the accused persons were apprehended by the police. Search of accused Duli Chand was conducted after serving notice under section 50 NDPS Act. On search 1½ kilograms Heroin (Smack) was recovered from the polythene which accused Duli Chand was holding in his hand. Accused Kishan Kumar was also searched after serving notice under section 50 NDPS Act but nothing incriminating was recovered. Chemical expert's report gave positive test for smack. Evidence on record shows that both the accused persons were acting with clear understanding of modus operendi for transfer of the contraband. Conduct of both these persons clearly reflect prior understanding between them for that purpose and thus show conspiracy. Thus both the accused persons possessed smack in pursuance of their conspiracy. Hence prosecution has proved its case against both the accused persons. Under these circumstances, both the accused persons are liable to be convicted for the offence -:29:- punishable under section 21 NDPS Act for having possessed smack and also under section 29 NDPS Act for having conspired to possess the smack.
46. As per subsequent FSL report Ex. PW 11/A the gross quantity of smack of 1½ kilograms recovered from accused persons contained only 0.93% diacetylmorphine in the contraband making the net quantity of diacetylmorphine as 13.95 grams which falls within the ambit of intermediate quantity. Keeping in view the judgments reported as Zia Ur Rehman Vs. State of Delhi (130 (2006) Delhi Law Times 635) and Ansar Ahmed & Ors. Vs. State (Govt of NCT of Delhi (123 (2005) Delhi Law Times 563).
47. Hence, in view of the above both accused persons are convicted for the offence punishable under section 21 (b) NDPS Act and under section 29 NDPS Act.
Announced in the open court (Sarita Birbal) on 10.11.2009 ASJ:Spl. Judge(NDPS Act): KKD Courts: Delhi. -:30:- IN THE COURT OF SMT SARITA BIRBAL: ASJ:
SPL. JUDGE (NDPS ACT):KARKARDOOMA COURTS: DELHI S.C. No: 40/02 State Versus 1. Kishan Kumar s/o Shri Mahender Prakash r/o 2/116, Mohalla Sahatibhan Lal Farukhabad, UP
2. Duli Chand son of Giri Raj Singh r/o A 31, Shashi Garden, Mayur Vihar. Delhi FIR No: 24/02 P.S.: Narcotics Branch U/s. 21 and 29 of the NDPS Act Order on Point of Sentence
1. I have heard ld. Addl. PP for the State and Shri S.K. Ahuliwalia, ld counsel for convict Duli Chand, convict Kishan Kumar in person on the point of sentence.
2. It is submitted on behalf of convict Duli Chand that he is a poor person, having liability to support his old aged sick and widow mother with his family consisting of three marriageable daughters, minor son and wife further stating that he is first -:31:- offender. It is further stated that now he wants to lead life of a good citizen. It is also prayed that a lenient view may be taken against him.
3. It is submitted by convict Kishan that he is a poor person, having liability to support his old aged sick and widow mother with his family consisting of two marriageable daughters, two son and wife. It is further stated that now he wants to lead life of a good citizen. It is also prayed that a lenient view may be taken against him.
4. On the other hand, ld Addl PP for the State submitted that convict be sentenced with maximum punishment as prescribed under Law.
5. As per the report of Ahalmad convict Kishan Kumar has already remained in judicial custody for a period of four years and four months during the trial of this case. It is also reported that convict Duli Chand has already remained in judicial custody for a period of four years, three months and twenty nine days during the -:32:- trial of this case.
6. Keeping in view the facts and circumstances of the case and circumstances of the case and in view of ratio of (i) Mahesh Pal's case in bail application No.2529/2005 decided on 05.06.06 by the Hon'ble High Court of Delhi and (ii) Zia Ur Rehman Vs. State of Delhi (130 (2006) Delhi Law Times 635), convict - Kishan Kumar is sentenced to the period already undergone by him during trial of this case and further sentenced to pay fine in the sum of Rs. 1,000/- (Rupees one thousand only) I/D SI for fifteen days for the offence punishable under section 21 (b) NDPS Act. This convict is also sentenced to the period already undergone by him and further to pay a fine in the sum of Rs. 1,000/- (Rupees one thousand only) I/D SI for fifteen days for the offence punishable under section 29 NDPS Act.
Convict - Duli Chand is also sentenced to the period already undergone by him during trial of this case and further sentenced to pay fine in the sum of Rs. 1,000/- (Rupees one -:33:- thousand only) I/D SI for fifteen days for the offence punishable under section 21 (b) NDPS Act. This convict is also sentenced to the period already undergone by him and further to pay a fine in the sum of Rs. 1,000/- (Rupees one thousand only) I/D SI for fifteen days for the offence punishable under section 29 NDPS Act.
Fine paid by convict Duli Chand.
Copy of the judgment and order on sentence be supplied to the convicts, free of costs .
Case property be confiscated to the State, after the expiry of period of revision/appeal, if any.
File be consigned to Record Room.
Announced in the open court
on 11.11.2009 (Sarita Birbal)
ASJ:Spl. Judge(NDPS Act):
KKD Courts: Delhi.