Delhi District Court
Sc No. 35/11 State vs . Emeka Paul & Anr. on 3 September, 2015
SC No. 35/11 State Vs. Emeka Paul & Anr.
IN THE COURT OF SH. DEEPAK GARG: SPECIAL JUDGE NDPS:
PATIALA HOUSE COURTS: NEW DELHI
SC No. 35/11
ID No. 02403R0064062011
FIR No. 23/2011
PS Special Cell
u/s 21 and 29 NDPS Act
State Vs. 1. Emeka Paul
S/o Sh. Paul
R/o D259, Nawada Housing
Complex, Uttam Nagar, Delhi
2. Mohd. Sarvar
S/o Sh. Abdul Khalid
R/o Lohewala, Tire Ara, Distt. 9,
Kandhar Afghanistan
Date of Institution : 24.08.2011
Judgment reserved on : 20.08.2015
Date of pronouncement : 03.09.2015
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused persons u/s 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as 'NDPS Act').
2. Briefly stated the allegations against the accused persons as made in the chargesheet and as can be culled out from the documents filed alongwith it are FIR No. 23/11 PS Special Cell Page No. 1 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
as follows:
(a) On 5/4/2011 at about 10:30 AM, one secret informer came to the office of Special Cell SR, New Friends Colony and informed Inspector Satender Sangwan that one Afghani national would be coming on 5/4/2011 at about 3:00 PM opposite Netaji Subash Institute, Dwarka Mor to deliver a consignment of drugs to some Nigerian national.
(b) Inspector Satender Sangwan discussed the information with Sh. L.N. Rao, ACP and produced the secret informer before him. ACP L.N. Rao directed for the conduct of a raid. DD entry no. 10 was also lodged in this regard and as per the directions of the ACP, a raiding team comprising of Inspector Satender Sangwan, ASI Rajender Kumar, ASI Mahipal, HC Balraj, HC Ram Karan, Ct.
Rajesh and Ct. Satish and the secret informer left the office of Special Cell at about 12:30 PM in one govt. gypsy and one private car for the spot i.e. Dwarka More vide DD no. 6 and reached the there at about 01.30 PM.
(c) On the way, the IO requested 56 passersby at Maharani Bagh, 56 persons near Maharani Bagh bus stop and 45 passersby at the spot to join the raiding team but none agreed to do so. Thereafter, the members of the raiding team were briefed by Inspector Satender Sangwan and vehicles were got parked in the service lane near the spot and team members were deployed at strategic points. IO Inspector Satender Sangwan himself took position alongwith the secret informer on the opposite side of gate of Netaji Subhash Technology Institute and the other team members took their position nearby and started waiting.
FIR No. 23/11 PS Special Cell Page No. 2 of 25
SC No. 35/11 State Vs. Emeka Paul & Anr. (d) At about 2:40 PM, one TSR was seen coming from Dwarka side
which stopped near the gate of Netaji Subhash Institute of Technology. One person got down from the said TSR and thereafter the TSR left the spot. After 5 minutes another TSR came from Dwarka more side and stopped near the person who had earlier come at the spot. The secret informer identified the person who had come first as the Afghani who had come to deliver the contraband and the second one was identified as the Nigerian who had come to take delivery. Both the said persons were then seen talking something with each other and after 45 minutes thereafter Afghani look person took out a packet from his front pant pocket and handed over the same to Nigerian look person. At that point of time, the raiding team apprehended both of them.
(e) IO Inspector Satender Sangwan then introduced himself and the members of the raiding team to the accused persons and on enquiry the Nigerian look person revealed his name as Emeka Paul and Afghani look person revealed his name as Mohd. Sarvar. They were then informed about the secret information received by the raiding team and they were also apprised about their right to be searched before a Gazetted Officer or a Magistrate. Notices u/s 50 NDPS Act were also issued to the accused persons and they were explained its contents. Both of them refused to call a Gazetted Officer or a Magistrate and informed the IO that their search may be taken by the police officials themselves.
(f) Thereafter, Inspector Satender Sangwan conducted the search of the white colour polythene which the accused Emeka was holding in his right hand FIR No. 23/11 PS Special Cell Page No. 3 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
and which was handed over to him by Mohd. Sarvar. On opening the polythene, it was found containing cream/brown colour powder/crystal form substance which on smelling and testing with the field testing kit gave positive for heroin. The recovered substance was also weighed and its weight came out to be 800 grams. One sample of 50 grams was taken out from the recovered heroin and was put in a small transparent pouch and was converted into cloth pullandas which was then given Mark S1. The polythene containing the remaining heroin was converted into a cloth pullanda and given Mark 'A'. Both the pullandas were sealed with the seal of SS. The FSL Form was filled and the impression of the same seal was then affixed on the Form FSL. Seizure memo was prepared.
(g) Thereafter, Inspector Satender Sangwan then took cursory search of accused Mohd. Sarvar upon which one khaki colour packet tied on his right leg below knee with the help of tape was found. The said packet was removed after cutting the tape with the help of blade and thereafter checked by making a cut on one side of the said packet. On opening the polythene, it was found containing cream/brown colour powder/crystal form substance which on smelling and testing with the field testing kit gave positive for heroin. The recovered substance was also weighed and its weight came out to be 860 grams. One sample of 50 grams was taken out from the recovered heroin and was put in small transparent pouch and was converted into cloth pullandas which was then given Mark S2. The polythene containing the remaining heroin was converted into a cloth pullanda and given Mark 'B'. Both the pullandas were FIR No. 23/11 PS Special Cell Page No. 4 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
sealed with the seal of SS. The FSL Form was filled and the impression of the same seal was then affixed on the Form FSL. Seizure memo was prepared and thereafter the seal was handed over to HC Balraj.
(h) The Rukka was prepared and the same alongwith the FSL forms, seizure memos and sealed property was handed over to ASI Rajender Kumar, who thereafter went to PS Special Cell and produced the case property before SHO, PS Special Cell and handed over the rukka to Duty Officer for registration of FIR. SHO affixed his seal on all the pullandas and documents and also put the FIR number on the carbon copy of seizure memo, FSL form and all the pullandas with his signature and deposited the same with MHCM. Further investigation was handed over to SI Anand Swaroop who came to the spot and prepared the site plan, arrested the accused persons and interrogated them.
(i) Both the accused persons were then produced before Inspector R.S. Sehrawat, SHO and the personal search articles was then deposited with the malkhana and statements of witnesses were recorded. Report u/s 57 NDPS Act pertaining to the seizure and arrest of accused persons was submitted to the senior officials.
(j) Thereafter the sample pullandas were sent to FSL, Rohini. After receiving the reports from FSL with respect to the contraband, the present chargesheet was filed.
3. On the basis of material placed on record, charges were framed by the Ld. Predecessor of this court vide order dated 08.09.2011 against accused Emeka FIR No. 23/11 PS Special Cell Page No. 5 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
Paul and Mohd. Sarvar for the offences punishable u/s 21 (c) r/w section 29 of the NDPS Act. Both the accused persons pleaded not guilty to the said charges and claimed trial.
4. The prosecution in order to prove its case has examined 10 witnesses in all.
5. PW1 ASI Rajender Kumar, PW4 HC Balraj and PW10 Inspector Satender Sangwan are members of the raiding team which had apprehended the accused persons. PW4 and PW10 have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. As per their depositions, the secret information received by PW10 was reduced into writing vide DD no. 5 and the departure of the raiding team from the PS was recorded vide DD no.
6. The said DDs have been exhibited as Ex.PW10/B and Ex.PW10/C respectively. The notices issued to the accused Emeka Paul and Mohd. Sarvar u/s 50 of the NDPS Act have been exhibited as Ex.PW4/A and Ex.PW4/C respectively and the refusals written by the accused persons have been exhibited as Ex.PW4/B and Ex.PW4/D respectively. The seizure memos prepared with respect to the recovery of the heroin from both the accused persons have been exhibited as Ex.PW4/E and Ex.PW4/F. Though PW1 ASI Rajender Kumar has also deposed that he was a member of the raiding team, he has not deposed in detail about the search and seizure proceedings and has merely deposed that the tehrir alongwith the FSL forms, seizure memos and sealed property was handed over to him and he thereafter went to PS Special Cell and produced the FIR No. 23/11 PS Special Cell Page No. 6 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
case property before SHO, PS Special Cell and handed over the rukka to Duty Officer for registration of FIR. The tehrir prepared at the spot has been exhibited as Ex.PW10/A.
6. PW2 ASI M. Baxla has deposed that he was posted as MHC(M) at PS Special Cell on 5/4/2011 and this witness has proved the entries in the malkhana register maintained by him with respect to case property, pullandas, etc deposited with him by the investigating official.
7. PW3 Duty officer ASI Bhagwat Prasad has interalia deposed that he was the duty officer on 5/4/2011 and that on this date he had received the rukka of the present case through ASI Rajender Kumar and had registered the FIR, Ex.PW3/A and had made endorsement in this respect, Ex.PW3/B.
8. PW5 HC Ram Karan has interalia deposed that on 26/04/2011 he had taken pullandas mark S1 and S2 from MHC(M) vide RC no. 55/21 and had got the same deposited with FSL, Rohini, obtained a receipt Ex.PW2/E and handed over the same to MHC(M).
9. PW6 Sh. Amar Pal, Assistant Director, FSL, Rohini has proved the report prepared by him with respect to the analysis conducted by him of the samples mark S1 and S2 sent to FSL during investigation. The said report has been exhibited as Ex. PW6/A and as per the said report, the samples Mark S1 and S2 were found to contain diacetylmorphine, the percentage of diacetylmorphine to be 21.15% and 21.73% respectively.
10.PW7 Inspector Rajender Sehrawat, has interalia deposed that on 05/04/2011, FIR No. 23/11 PS Special Cell Page No. 7 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
he was posted as SHO, PS Special Cell, Lodhi Colony Delhi and on said day, ASI Rajender Kumar had produced before him, four sealed pullandas mark S1, S2, A and B, FSL Forms and carbon copy of seizure memos. As per the deposition of this witness, he had put the FIR number, his initials and his seal of 'RSS' on all the pullandas and the FSL form and had then got the said property deposited in the Malkhana by ASI M. Baxla, MHC(M) and had lodged DD no. 9, Ex.PW7/A in this regard. He further deposed that on the same day at about 12 night SI Anand Swaroop produced the accused persons before him.
11.PW8 ASI Anand Swaroop is the second investigating officer of the present case who has inter alia deposed that on reaching the spot he had met Inspt. Satender Sangwan who had produced before him the accused persons and documents prepared by him. As per this witness he had thereafter prepared the site plan Ex.PW1/DA and had arrested accused Emeka Paul and Mohd. Sarvar vide arrest memos, Ex.PW4/H and Ex.PW4/G respectively. This witness has also inter alia proved the report prepared by him u/s 57 NDPS Act as Ex.PW9/A.
12.PW9 HC Uma Shankar, Reader to ACP Special Cell has interalia deposed that as per the record maintained by him report u/s 57 NDPS Act regarding seizure of heroin and arrest of accused persons, prepared by SI Anand Swaroop was received in the office of ACP and that the said report was put before ACP. The report and record produced by this witness have been duly exhibited during his testimony as Ex.PW9/A and Ex.PW9/B respectively. FIR No. 23/11 PS Special Cell Page No. 8 of 25
SC No. 35/11 State Vs. Emeka Paul & Anr.
13.All the aforementioned evidence was thus put to both the accused persons u/s 313 CrPC and in the statement the accused Emeka Paul has contended before this court that he is innocent and has been falsely implicated and that no contraband was recovered from him. As per the version given by the accused in the said statement, he had come to India in the year 2006 on a business visa and thereafter married an Indian national in the year 2008. He also had a baby boy from the said marriage in the year 2009 and he along with his family were residing in a tenanted premises in Dwarka More in the year 2011. On 5/4/2011, which was a Tuesday, when both he and his wife were preparing to go to the Nigerian Embassy to apply for a passport for their son, 4 men came to their premises and asked him to show them his passport. They introduced themselves as police officials, though they were not in police uniform. He also identified one of them i.e. Anand Swaroop as he used to stay in the same locality in which he was staying. They told him that though they had seen his passport he will have to accompany them to police Station for some verification of the said passport. He told them that he will intimate his landlady about the same but they told him that there is no need for the same. However, when they got out of our tenanted premises the landlady saw them and she inquired from the police as to why he was being taken. They told her also that he was being taken for some verification of his passport. Thereafter he and his wife both accompanied the said police officials in their white Maruti vehicle which they had parked outside the tenanted premises. They left their child with the sister of his wife who was also present at the house at that time. After taking him to their office, FIR No. 23/11 PS Special Cell Page No. 9 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
the said persons after a while told his wife to go away and told her that he will be back in a few hours of time. Thereafter he was implicated in this case. Under force and coercion he was made to sign two blank documents and also wrote few lines on one of the said documents as per the dictation of the police officials.
14.In the statement u/s 313 Cr.PC, the accused Mohd. Sarvar has contended before this court that he is innocent and has been falsely implicated and that no contraband was recovered from him. As per the version given by the accused in the said statement, he was picked up from a park in front of a metro station near Saket on 5/4/2011 at about 5:00 PM when he was having a walk in the said park along with his wife and children. He had come to India in the month of November, 2010 to get his wife treated as she was suffering from psychological/psychiatric problem. On 5/4/2011 the police officials after intercepting him in the park asked him his name and also told him to show them his passport. He told them that his name is Masood and that he had come to India to get his wife treated. He had also shown them his passport. After seeing his passport police officials stated that since his visa had expired he has to accompany them for some inquiry and took him to their office where he was made to sign some blank papers under threat and coercion and he was made to write few lines which the police officials had told him to copy from another piece of paper. He has stated that his name is not Mohd. Sarvar but his name is Masood s/o Abdul Khalid and he was a resident of Distt3, Shikarpur Bazar, Kandhar, Afghanistan.
FIR No. 23/11 PS Special Cell Page No. 10 of 25
SC No. 35/11 State Vs. Emeka Paul & Anr.
15.Accused Emeka Paul has examined in his defence his wife Ms. N. Flavia S. Hangam as DW1. Accused Mohd. Sarvar has examined himself in defence as DW2.
16.After the conclusion of the defence evidence Ld. APP for State Sh. Ravinder Bhati and Ld. Defence Counsels Ms. Sushma Sharma and Sh. Mir Akhtar Hussain have advanced final arguments before this court and written submissions have also been filed on record by the Ld. Defence Counsels.
17.As narrated above, evidence has been led by the prosecution to prove that on 05.04.2011, Inspector Satendra Sangwan (PW10) had received the secret information in question which was reduced into writing in the form of DD No.5 and the copy of the same is Ex.PW10/B. He discussed the said information with the ACP Special Cell and produced the secret informer before him who satisfied himself regarding the information and directed him to take immediate legal action. As far as the recovery of contraband from the accused is concerned, the members of raiding team Inspector Satendra Sangwan (PW10) and HC Balraj (PW4) have described the search and seizure proceedings that took place at the spot, in detail. The fact that after seizure, the case property was produced before the officer empowered under section 53 NDPS Act in compliance of section 52 and 55 of the NDPS Act has been proved by PW7 Inspector Rajendra Sehrawat. The fact that the case property was kept in safe custody has been proved by PW2 ASI M. Baxla, MHCM. PW9 HC Uma Shankar has proved that report u/s 57 NDPS Act Ex.PW9/A regarding the seizure of heroin and arrest of accused persons prepared by SI Anand Swaroop FIR No. 23/11 PS Special Cell Page No. 11 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
was received in the office of ACP and the said report was put up before the ACP. Relevant entry in the register of ACP has been proved as Ex.PW9/B. The deposition of PW5 HC Ram Karan makes it clear that samples drawn out from the recovered substance in the proper custody were taken to FSL, Rohini for examination. PW6 Amar Pal, Assistant Director, FSL has proved that the samples examined by him had tested positive for diacetylmorphine. The testimony of the prosecution witnesses is trustworthy and believable and nothing has come in the crossexamination of the aforesaid witnesses which casts doubt on the veracity of their deposition.
18.Accused Emeka Paul has taken a defence that on 05.04.2011, he was lifted by certain police officials from his house where he was present alongwith his family under the pretext of verification of his passport and that while he was being taken out from his tenanted premises, it was seen by his landlady who had enquired the matter from the police. At Police Station, the officials asked for illegal gratification and on his failure to pay the same, he was falsely implicated in this case. Ms. N. Flavia examined by this accused is his wife and she is an interested witness. He could have examined the landlady who allegedly saw him being taken away by the police but she has not been examined in the court. The accused has made bald statement in his statement u/s 313 Cr.PC and his defence is not proved.
19.Accused Mohd. Sarvar has taken a defence that he was picked up from a park in front of the metro station near Saket on 05.04.2011 at about 05.00 PM when he was having a walk in the said park alongwith his wife and children and he FIR No. 23/11 PS Special Cell Page No. 12 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
was taken by the police under the pretext that they had to conduct enquiry regarding his visa but subsequently he was falsely implicated in this case. Although Mohd. Sarvar has examined himself in defence but apart from that he has not led any evidence to prove that he was picked up by the police in the manner as stated in his statement u/s 313 Cr.PC. In the light of convincing prosecution evidence, he has also not been able to prove his defence in the court.
20.It is argued by the Ld. Counsel for accused Mohd. Sarvar that there is non compliance of section 50 NDPS Act because the accused was not informed about his legal rights and this fact is not mentioned on the notice u/s 50 NDPS Act, Ex.PW4/C. It is further argued that the refusal of accused, Ex.PW4/D is completely incorrect and is in broken English language which does not convey anything and this on the face of it shows that it was tutored and hence there is complete non compliance of this mandatory provision. Ld. APP for the State has controverted the same by stating that the legal rights were duly explained to the accused and the refusal, Ex.PW4/D is in the hand of the accused himself and hence the section 50 NDPS Act was completely complied with. I have perused the notice u/s 50 NDPS Act which is Ex.PW4/C. Although it is not specifically mentioned in this notice that 'legal rights' were explained to the accused but is mentioned therein that the accused was given an offer that he can get himself searched before a Gazetted Officer or a Magistrate. The court has to see the overall circumstances and the evidence led by the prosecution to see whether there is compliance of section 50 NDPS Act or not in the matter. The FIR No. 23/11 PS Special Cell Page No. 13 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
testimony of Inspector Satendra Sangwan (PW10) and HC Balraj (PW4) amply makes it clear that the accused was explained his legal right to be searched in the presence of a Magistrate or a Gazetted Officer and that they could take the search of the police party. As far as his refusal recorded in broken English is concerned, the accused in his statement u/s 313 Cr.PC could not even identify whether the said refusal is in his handwriting or not. He stated that the police officials had beaten him and had forced him to copy some sentences from another piece of paper but he could not recall whether the lines that he had copied were the same that were written in Ex.PW4/D. Hence the accused himself has taken vacillating approach with regard to his refusal Ex.PW4/D and looking at the matter from the overall circumstances and considering the evidence on record in this regard, it cannot be said that there is non compliance of section 50 NDPS Act.
21.It is further argued by Ld. Counsel for accused Mohd. Sarvar that the recovery of contraband from the packet wrapped on the leg of the accused is itself highly doubtful because as per the case of the prosecution, the said khakhi colour packet was found wrapped on the leg of the accused with tape but the said tape produced in the court did not show any strand of human hair attached to it. It is argued that it is not possible that when the tape was removed which was wrapped around the leg of the accused, no hair of his leg would get plucked while the packet was removed and this itself shows the manipulation and the fact that nothing was recovered from the leg of the accused as alleged. In my view, the point raised by Ld. Counsel for the defence is not that material to FIR No. 23/11 PS Special Cell Page No. 14 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
disbelieve the entire case of the prosecution. The mere fact that the tapes produced in the court did not show any hair of the leg of the accused attached with it, does not mean that the said substance was not recovered in the manner portrayed by the prosecution.
22.It is further argued by Ld. Counsel for accused Mohd. Sarvar that his name is not Mohd. Sarvar S/o Abdul Khalid and that actually he is Mohd. Masood S/o Abdul Khaliq and that the accused has proved this fact as he placed a copy of his passport in the court which was put to PW7 and PW8 during their cross examination. On the other hand, it is stated by Ld. APP for the State that he was residing in India under the name of Mohd. Sarvar and that is what he told his name to the investigating agency at the time of the incident in question. In my view, the investigating agency would write the name of the accused as is told to them at the said time. There is nothing on record that the accused even at the time of his production in the court from time to time while taking judicial remand conveyed to the Presiding Officer that his name is wrongly mentioned in the matter.
23.It is further argued by Ld. Counsel for accused Mohd. Sarvar that the documents prepared by the investigating agency itself shows that the entire case is bogus. It is stated that the seizure memo bears the FIR number of the case and the site plan does not bear any FIR number and it shows that these are concocted documents. In my view, there is no merit in this contention of the defence. Perusal of the seizure memo shows that the FIR number has been written in a different ink and in these circumstances it is clear that it was FIR No. 23/11 PS Special Cell Page No. 15 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
written subsequently after the registration of the FIR. This coupled with the fact that the FIR number is not mentioned on the site plan would not be sufficient to disbelieve the entire case of the prosecution. The counsel for the defence should have brought this to the attention of the investigating officer at the time of his crossexamination but he was not crossexamined on this aspect and hence there was no opportunity for the relevant witness to explain about the same.
24.It is argued by both the Ld. Counsels for the defence that no public witness was included by the investigating agency in the entire search and seizure proceedings. It is further argued that Inspector Satendra Sangwan (PW10) in his crossexamination has admitted that there were residential houses 100200 mtrs away from the spot but no resident of the locality was called or requested to become a public witness to the proceedings and this itself creates doubt in the case of the prosecution. Ld. Counsels have relied upon the judgment reported as Ritesh Chakravarty Vs. State of M.P. (2006) 12SCC 321 and Rajesh Kumar @ Sanjay Vs. NCT of Delhi 2014 (3) JCC (Narcotics) 156 in support of their contentions. Ld. APP for the State has argued that although the residents may not have been asked by the IO but while on the way to the spot and at the spot, the investigating agency did try to involve public witnesses but they were reluctant to join the proceedings. In my view, the court has to see the overall circumstances of the case. It is now fairly well settled that merely because independent witnesses were not joined in the investigation, it would not render the testimony of the police officials as untrustworthy. If the testimony of the FIR No. 23/11 PS Special Cell Page No. 16 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
police officials is found to be trustworthy, in such circumstances, it can be acted upon even in the absence of independent witnesses. It was so held by Hon'ble Supreme Court in M. Prabhulal Vs. Assistant Director of Revenue Intelligence (2003) 3JCC 1631. In the present case, the testimony of the recovery witnesses has been held to be reliable and trustworthy and in view of the same, non inclusion of public witnesses in the investigation in itself does not make the case of the prosecution doubtful. Moreover, it is noticed that members of public are reluctant to join the investigation and come forward and depose, especially in criminal trial for various reasons. In the case of State of A.P. Vs S. Rayappa & Ors. (2006) 4 SCC 512. Hon'ble Supreme Court commented upon the reason for reluctance of public persons to join as witness in criminal cases. In para No.7 of the report, it was observed as under: "On the contrary it has now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy crossexamination."
25.It has been recently held by Hon'ble Supreme Court in Madhu @ Madhuranatha and Anr. vs. State of Karnataka AIR 2014 SC 394 that there can be no prohibition to the effect that a policeman cannot a witness or that his deposition cannot be relied upon if it inspires confidence.
26.Ld. Counsel for both the accused have pointed out certain contradictions in the FIR No. 23/11 PS Special Cell Page No. 17 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
statements of witnesses to assert their point that the investigation did not take place in the manner alleged by the prosecution and that the entire proceeding was conducted at the PS. The contradictions pointed out by Ld. Counsels for the defence are as under:
(i) PW1 claims that the raiding party was constituted at 11.00 AM whereas PW4 has stated that it was constituted at 12 Noon.
(ii) PW1 claims that they left the Special Cell office at 12 Noon whereas PW4 states that they left the office at 12.30 PM.
(iii) PW1 states that the raiding party had left in two vehicles, one police vehicle and one other vehicle whereas PW4 states that the raiding party had left in two vehicle, one Maruti car and one Swift.
(iv) There is contradiction in the statement of PW1 and PW4 regarding the sitting arrangement of the raiding party members in the vehicles, driver of the vehicles and the route adopted to go at the spot.
(v) PW1 claims that they reached the spot at 01.00 PM whereas PW4 claims that they reached at 01.30 PM.
(vi) PW1 has stated in his crossexamination that Duty Officer had taken 3045 minutes in the registration of the FIR whereas PW3 who was the Duty Officer deposed that he recorded the FIR between 08.00 PM to 10.50 PM.
In my view, the discrepancy/contradictions highlighted by the Ld. Counsels are not sufficient to discredit the testimony of the official witnesses. In case titled as Kathi Bharat Vajsur and Anr. V. State of Gujarat AIR 2012 SC 2163, the FIR No. 23/11 PS Special Cell Page No. 18 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
Hon'ble Supreme Court of India held that :
"19. This Court, in the case of Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra: (2010) 13 SCC 657, summarised the law on material contradictions in evidence thus:
30.While appreciating the evidence, the court has to take into consideration whether the contradictions/ commissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons (Vide State v. Saravanan)."
27.When I evaluate the evidence of prosecution witnesses in the light of the above principle, I find that the contradictions pointed out by Ld. Defence counsels are not material at all. They relate to trivial matters without affecting the core of the prosecution case and hence, it is no ground to reject the case of the prosecution.
28.Ld. Counsels for the defence have next emphasized a lot on the point that there was delay of about 21 days in sending the sample parcels to the laboratory and hence it creates doubt in the case of the prosecution. In support of this contention they have relied upon Nachhatter Singh Vs. State of Haryana 2014(2) JCC (Narcotics)121. In my view, mere delay in sending the sample parcels to the laboratory cannot be a ground to presume tampering with the FIR No. 23/11 PS Special Cell Page No. 19 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
case property. The delay would be material only where suspicion as to the tampering with case property is brought to the notice of the court. Where there is absolutely no plausible evidence to indicate tampering with the case property, the mere delay in sending the samples to the laboratory cannot be fatal to the case of the prosecution. The prosecution has completed the link evidence of this case by examining all the material witnesses i.e. Inspector Rajender Singh Sehrawat (PW7) to whom the case property was handed over by ASI Rajender Kumar (PW1) in the police station; the MHCM ASI M. Baxla (PW2) to whom the case property was handed over by Inspector R.S. Sehrawat for depositing it with malkhana; HC Ramkaran (PW5) who took the sample parcels with CFSL forms from MHCM and got the same deposited with FSL, Rohini and he obtained a receipt thereof which was handed over to the MHCM. All these witnesses have completed the link evidence. There is no evidence to suggest that during the time the case property remained in the possession of the prosecution witnesses, it was tampered with by anybody. It has also been proved that the FSL forms were prepared at the spot, were taken to the PS alongwith the case property and deposited in the malkhana by the MHCM on the instructions of Inspector R.S. Sehrawat. Neither any of the prosecution witness had any reason to tamper with the case property nor any such evidence has come on record. Thus mere delay of about 10 days is not sufficient to see that case of the prosecution with doubt.
29.In a recent case titled as Mohan Lal Vs. State of Rajasthan (2015) 6SCC 222, FIR No. 23/11 PS Special Cell Page No. 20 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
the Hon'ble Supreme Court of India has held that where the parcel is received at FSL with seal being intact, there is no reason or justification to discard the prosecution case on the ground of delay in sending the sample to FSL. In this case, the Hon'ble court cited another authority titled as Harbir Singh Vs. State of Punjab (2008) 8SCC 557 where there was 40 days gap between seizure and sending the sample to Chemical Examiner and after examining all the circumstances, the Hon'ble Supreme Court held that the opium was seized from the appellant and seals put on the sample were intact till it was handed over to the Chemical Examiner and in this circumstance, the delay itself would not be fatal to the prosecution case.
30.It is further point out by Ld. Counsels for the defence that there is no evidence on record to show that the accused had conspired for commission of the alleged offence. It is stated that PW8 ASI Anand Swaroop has admitted that he did not collect any documentary evidence i.e. call detail records of the mobiles of the accused persons, joint photographs, any correspondence between the accused persons, etc. It is further pointed out that there is no evidence to prove that the accused persons were known to each other prior to the incident. Ld. APP for the State has frankly conceded this aspect that no investigation with regard to the abovesaid points raised by the Ld. Counsels was conducted and there is no such evidence on record. I agree with the Ld. Counsels for the defence and in my view, the mere fact that both the accused persons were apprehended at the spot in the manner as detailed in the prosecution case and discussed above, would FIR No. 23/11 PS Special Cell Page No. 21 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
not be sufficient to convict the accused persons u/s 29 NDPS Act unless and until there is something to show that they had entered into criminal conspiracy to commit the offence in question. Since the prosecution has not brought any evidence to show that the accused persons knew each other prior to the incident or that they were in continuous touch with each other through phone or otherwise, it cannot be said that the prosecution has been able to prove the charge of conspiracy. Hence the accused persons are acquitted for the offence u/s 29 NDPS Act.
31.In view of the above, the prosecution has been able to prove its case beyond reasonable doubt u/s 21(c) NDPS Act with respect to both the accused persons. Hence both the accused persons are convicted u/s 21(c) NDPS Act.
32.Requisite bonds u/s 437A Cr.PC has not been filed by the accused persons inspite of directions of the court dated 02.06.2015.
33.Let the accused persons be heard on the point of sentence on 07.09.2015. Announced in the open court on this 3rd day of September, 2015 (Deepak Garg) Special Judge NDPS : New Delhi Patiala House : New Delhi FIR No. 23/11 PS Special Cell Page No. 22 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
IN THE COURT OF SH. DEEPAK GARG : SPECIAL JUDGE NDPS PATIALA HOUSE COURTS : NEW DELHI FIR No. 23/2011 PS Special Cell u/s 21 and 29 NDPS Act State Vs. Emeka Paul ORDER ON SENTENCE Present: Sh. R.K. Bhati, Ld. APP for the State.
Both the convict from JC.
Defence counsels Ms. Sushma Sharma and Sh. Mir Akhtar Hussain. Vide judgment dated 03.09.2015, accused Emeka Paul and Mohd. Sarvar were convicted for the offence punishable u/s 21(c) of NDPS Act.
I have heard Ld. Counsels for both the sides on the point of sentence. Ld. APP for the State has argued that since the convicts have been convicted for the possession of commercial quantity of heroin which is a narcotic drug within the meaning of NDPS Act, they do not deserve any leniency and they should be imposed the maximum punishment.
It is submitted by Ms. Sushma Sharma, Ld. Counsel for convict Emeka Paul that he is around 38 years of age and he has Indian wife and a small child of 6 years who are completely dependent upon him for survival. It is further stated that he has no previous criminal antecedents and hence lenient view may be taken by the court.
On behalf of convict Mohd. Sarvar, it is stated by Ld. Counsel Sh. FIR No. 23/11 PS Special Cell Page No. 23 of 25
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Mir Akhtar Hussain that this convict is aged around 36 years and he is resident of Afghanistan and he had come to India for medical treatment of his wife and he also does not have any previous criminal antecedents and in view of the same, minimum sentence be awarded on the convict as prescribed under the law.
On the question of sentencing, it will be useful to refer to an authority of Hon'ble Supreme Court of India reported in State of Uttar Pradesh Vs. Sanjay Kumar (2012) 8 SCC 537 in which the sentencing policy has been explained in paragraph 21 which reads as under:
"21. Sentencing Policy is a way to guide judicial discretion in accomplishing particular sentencing. Generally, two criteria, that is, the seriousness of the crime and the criminal history of the accused, are used to prescribe punishment. By introducing more uniformity and consistency into the sentencing process, the objective of the policy, is to make it easier to predict sentencing outcomes. Sentencing policies are needed to address concerns in relation to unfettered judicial discretion and lack of uniform and equal treatment of similarly situated convicts. The principle of proportionality, as followed in various judgments of this Court, prescribes that, the punishments should reflect the gravity of the offence and also the criminal background of the convict. Thus the graver the offence and the longer the criminal record, the more severe is the punishment to be awarded. By laying emphasis on individualised justice, and shaping the result of the crime to the circumstances of the offender and the needs of the victim and community, restorative justice eschews uniformity of sentencing. Undue sympathy to impose FIR No. 23/11 PS Special Cell Page No. 24 of 25 SC No. 35/11 State Vs. Emeka Paul & Anr.
inadequate sentence would do more harm to the public system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats."
In view of the fact that there is no previous criminal antecedents of both the convicts and the fact that they have family members who are dependent upon them, this court intends to impose minimum sentence as prescribed under the law upon them. After considering the facts and circumstances, for the offence u/s 21(c) NDPS Act, both the convicts are sentenced to RI for 10 years and fine of Rs.1 lac. In default, SI for 6 months. Fine not paid. Benefit of section 428 Cr.PC is given to the convicts and the imprisonment already undergone by them shall be set of against the substantive period of sentence awarded to them.
Case property is confiscated to the State and the same may be disposed of after the expiry of the period of the appeal/revision.
Copy of the judgment and the sentence be given to the convict free of cost.
Copy of the order be sent to Jail Superintendent for compliance. Announced in the open court on this 7th day of September, 2015 (Deepak Garg) Special Judge NDPS : New Delhi Patiala House : New Delhi FIR No. 23/11 PS Special Cell Page No. 25 of 25