Delhi District Court
In The Case Of Ajmer Singh vs . State Of Haryana (2010) 3 on 23 January, 2012
IN THE COURT OF SH. NARINDER KUMAR
SPECIAL JUDGE (CENTRAL): DELHI
S. C. No. 05/2009
FIR No. 115/2008
PS Narcotics Branch
U/s 21 NDPS Act
In the matter of :
State
Versus
Amit
S/o Sh. Jawahar Lal
R/o A44, Nangli Vihar
Main Najafgarh Road,
New Delhi110062 .....Accused
Date of institution : 20.01.2009
Date of Judgment : 23.01.2012
J U D G M E N T
Amit Accused aged 30 years has been facing trial for an offence under Section 21 of Narcotics Drug & Psychotropic Substances Act (herein after referred to as "the Act") on the accusations that on 11.12.2008 at about 11:15 am, he kept in his possession 410gms of Grey colored powder heroin, at the FIR No. 115/08 1 corner of Government School, Bagga Crossing, Karol Bagh. On analysis, the expert found that the contents of the sample contained 1.84% diacetymorphine thereby revealing the total quantity of contraband to be 7.544 gms.
2. In brief, it is a case of the prosecution that on 11.12.2008 SI Bhagwan Singh of police station Narcotics Branch received secret information about expected arrival of a boy named Amit at Bagga crossing near Jhandewalan Temple to deliver smack in between 1111:30 AM, as even earlier he used to sell smack in the area in wholesale and in retail.
On the basis of this secret information, the SI brought the matter to the notice of Sh. M L Sharma, the concerned SHO, who also satisfied himself on inquiry from the informer and communicated information to ACP telephonically. Directions were issued for conducting of raid, thereupon raiding party consisting of SI Bhagwan Singh, Ct. Satpal and Ct. Sanjeev Kumar left the police station and held picket at the disclosed place. They succeeded in apprehending the accused at about 11:10 AM, at the pointing out of secret informer.
3. SI Bhagwan Singh served notice under Section 50 of the Act upon the accused. Since the accused did not offer to be searched in the presence of Gazetted officer or Magistrate. SI Bhagwan FIR No. 115/08 2 Singh conducted personal search of the accused which led to the recovery of a polythene containing contraband. It was weighed and found to be 410 gms.
Two samples of 5 gms each were drawn from the lot and sealed by SI Bhagwan Singh with his seal. Remaining heroin was also converted into a parcel and similarly sealed. The case property was seized, Form FSL was prepared and impression of the seal was affixed.
SI Bhagwan Singh then sent rukka from spot through Ct. Satpal while also handing over to him the sealed parcels, Form FSL and copy of seizure memo with specific directions. On the basis of rukka case was registered. Inspector Mohan Lal Sharma, SHO affixed his seals on the parcels and Form FSL. He also mentioned number of the FIR on these items and then handed over the same to HC Mahesh Kumar, MHC(M) along with copy of seizure memo.
4. SI Paramjeet took over investigation and reached the spot. At the spot, the SI prepared rough site plan of the place of recovery, arrested the accused and conducted his personal search. On return to the police station, SI deposited in malkhana the articles recovered, on personal search of the accused.
FIR No. 115/08 3
5. Reports under Section 57 of the Act were dispatched to the senior officers. Sealed parcels were sent to FSL along with forwarding letter (FSL Form). On analysis, FSL report was prepared.
6. On completion of investigation, challan was presented in Court.
Copies of documents relied upon by the prosecution were supplied to the accused free of cost.
Charge
7. Prima facie case having been made out, charge for offence under Section 21 of the Act was framed against accused on 11.2.2009. The accused claimed not guilty and claimed trial. Thereupon, prosecution was called upon to lead evidence.
Prosecution evidence
8. In order to prove its case, prosecution has examined following 8 witnesses: PW1 HC Karunakaran Nair To prove receipt of special reports in the office of ACP.
PW2 HC Ramesh Chand To prove recording of FIR. PW3 Ct. Sanjeev Kumar Witness to arrest of the accused and recovery of contraband.
PW4 Ct. Satpal Witness to arrest of the accused and recovery of contraband.
PW5 Inspector M L Concerned SHO sealed the parcels,
Sharma FSL form and deposited the same
with MHC(M) On 11.12.08.
FIR No. 115/08 4
PW6 HC Mahesh Kumar concerned MHC(M).
PW7 SI Paramjeet Singh Who subsequently took over
investigations of the case.
PW8 SI Bhagwan Singh Who initially investigated the matter.
Statement of accused
9. Statement of accused recorded under Section 313 CrPC the accused denied all the incriminating circumstances appearing in evidence against him and claimed false implication.
10. In his defence accused examined DW1 Sh. Ashok Bhatia, DW2 Sh. Navratan Sharma and DW3 Sh. Sanjay.
11. Arguments heard. File perused.
Discussion Receipt of information and communication under Section 42(2) of the Act.
12 .
Accused is alleged to have been apprehended on the basis of secret information received by SI Bhagwan Singh of PS Narcotics Branch while he was present at the police Station. SI Bhagwan Singh while appearing in Court as PW8, deposed that on 11.12.2008 at about 9.15 am one informer met him at the police station and apprised him of expected arrival of Amit, who used to supply heroin in the area of Jhandewalan temple, Delhi. The accused was expected to arrive in between 1111.30 am.
According to the SI, firstly, he satisfied himself about the secret information and then produced the informer before the SHO Inspector M. L. Sharma in his office at about 9.30 am and further that even SHO satisfied himself about the information. FIR No. 115/08 5
As further stated by PW8, the SHO communicated the information to Sh. Mahender Singh, ACP/N & CP telephonically.
Regarding receipt of information, prosecution has relied on Ex PW 8/A, which is carbon copy of DD No. 11A recorded at 9.45 am on 11.12.2008 at PS Narcotics Branch. As per contents of this entry, the secret information was received by SI Bhagwan Singh at 9.15 am about expected arrival of Amit between 11 11.30 am at Bagga crossing near Jhandewalan temple by the side of Government school, to supply smack and that he could be apprehended. SI first of all satisfied himself and then produced the informer before the SHO, who also satisfied himself on inquiry from the secret informer, and in turn informed Sh. Mahender Singh, ACP Ex PW8/A bears endorsement of the SHO in proof of the fact that he forwarded this information to the office of ACP by forwarding its original.
Inspector M. L. Sharma appeared as PW5. According to the witness, on 11.12.2008, SI Bhagwan Singh accompanied by the secret informer came to his office at 11.30 am and apprised him of expected arrival of Amit for sale of smack near Bagga crossing in between 1111.30 am. Further Inspector has deposed to have passed on this information to Sh. Mahender Singh, ACP telephonically.
FIR No. 115/08 6
Learned defence counsel has submitted that PW8 SI Bhagwan Singh stated in his cross examination that at the time he recorded information only Duty officer was present there. The contention is that from this statement of PW8, it cannot be said that the informer was present there or that any such information was received by the SI from any such secret informer.
It is true that in his cross examination PW8 deposed about presence of Duty Officer at the time he reduced into writing the information received and that no other person was present there but no specific question was put to PW8 in cross examination as to whether the secret informer was present at the time PW8 recorded the DD entry. In the next sentence, the witness stated that informer remained with him for about two hours. In the given situation and in absence of any specific question about the presence of secret informer at the time of recording of secret information, there is no merit in the contention of Learned defence counsel.
PW1 HC Karunakaran Nair is from the office of ACP. He has been examined to prove receipt of DD No. 11A Ex PW1/D vide entry at Sl. No. 1620 dated 11.12.2008 Ex PW1/E. It may be mentioned here that Ex PW1/D is the original which came to be forwarded by the SHO (PW5) to the office of ACP. Its copy is Ex PW8/A which was retained in the office of the SHO. Ex PW1/D bears signatures of SHO at point A and that of those of ACP at point X. Ex PW1/E i.e. copy of relevant page of the diary of correspondence contains entry at Sl. No. 1620 regarding receipt of information sent by SI Bhagwan Singh. All FIR No. 115/08 7 this goes to show compliance with provisions of Section 42 (2) of the Act.
SI Bhagawan Singh and others leave for disclosed place
13. It is case of the prosecution that on receipt of directions of the ACP to conduct raid, SI Bhagwan Singh accompanied by Ct. Tavinder and secret informer left for disclosed place, taking along IO bag, field testing kit and electronic weighing scale.
As per DD entry 12A (Ex PW8/B), they left at about 10.15 am. The contents of this DD entry support the version narrated by PW8 SI Bhagwan Singh that he constituted a raiding party and left the PS at about 10.15 am by government vehicle no. DL 1CJ 3481. At that time, they took along aforesaid items as further stated by this witness.
The witness further testified about route followed in reaching the disclosed place, by stating that they went via pusta road, Shakarpur Chungi, Vikas Marg, ITO, Ajmeri Gate and Paharganj, and reached the spot at about 11 am. He further stated about arrival of the accused at the spot at about 11.10 am and that he was apprehended at the pointing out of the informer.
In his cross examination, PW8 stated that distance between the spot and Jhandewalan temple is of 400 meters by road but explained that the entire area is known as Jhandewalan.
It is true that in his cross examination, PW8 admitted to have not made any entry in the log book of the government vehicle, referred to above, but the same is of no avail to the accused, having regard to the departure entry Ex PW8/B wherein number of this vehicle find specifically mentioned as the vehicle FIR No. 115/08 8 used by the in reaching the spot, after having left the PS at 10.15 am. Number of this vehicle also finds mention in DD entry no. 16A which was recorded at 3 pm on return of Ct. Satpal to the PS in the same vehicle.
PW3 HC Sanjeev Kumar was a member of the raiding party headed by SI Bhagwan Singh. He too deposed about departure from the police station in the company of SI Bhagwan Singh, Ct. Satpal and secret informer vide DD No. 12A, in gypsy no. DL 1CJ 3481. He also deposed about their arrival at the spot at about 11 am. The witness also deposed about route followed in reaching the spot, in line with statement made by PW8.
PW4 Ct. Satpal, another member of the raiding party has supported the prosecution version by deposing about his departure in the raiding party headed by SI Bhagwan Singh on 11.12.2008 by the aforesaid vehicle, taking the IO bag, field testing kit and electronic scale with them. This witness also deposed about their arrival at the spot at about 11 am, having followed the aforesaid route.
PW3 and PW4 further deposed about arrival of the accused and that he was apprehended at about 11.15 am the pointing out of the secret informer when he had started returning at about 11.15 am.
Compliance with provisions of Section 50 of the Act FIR No. 115/08 9
14. It is case of prosecution that Amit accused was found in possession of one transparent polythene under his full sleeves sweater, which he was wearing at that time of its search, led to recovery of heroin. When weighed, it was found to be 410 gms. Two samples each of 5 gms were drawn from the lot, turned into separate parcels and then sealed with the seal bearing impression 'BS'.
PW3 Ct. Sanjeev, PW4 Ct. Satpal and PW8 SI Bhagwan Singh have deposed about recovery of 410 gram heroin form the polythene which the accused had kept concealed on the left side of sweater which he was wearing at that time.
According to PW8 SI Bhagwan Singh before conducting personal search of the accused, he apprised the accused of his legal right of being searched to search in presence of Gazetted officer or Magistrate and that it could be arranged. In this regard, he prepared notice under Section 50 of the Act Ex PW3/A and supplied its copy to the accused. The contents of the notice were read over and explained to the accused, but he refused to be subjected to search in presence of Gazetted officer or Magistrate. According to the witness, refusal of the accused was recorded as is contained in Ex PW3/B. It may be mentioned here that PW3 HC Sanjeev and PW4 Ct. Satpal have made statements in consonance with the statement of PW8 SI Bhagwan Singh regarding service of notice under Section 50 of the Act upon the accused before he was FIR No. 115/08 10 subjected to personal search. They have also proved that accused refused to avail of right of being subjected to search in presence of Gazetted officer or Magistrate.
A perusal of Ex PW3/A would reveal that vide this notice SI Bhagwan Singh apprised the accused of his legal right of being subjected to search in presence of Gazetted officer or Magistrate and that arrangement could be made in this regard. He was also offered search of the members of the police party and government vehicle. This notice bears attestations of two constables i.e. Ct. Satpal and Ct. Sanjeev. Personal search memo Ex PW3/E was prepared by ASI Paramjit Singh, who subsequently took over the investigation after registration of the case.
As per contents of this personal recovery memo, carbon copy of notice under Section 50 was one of the three items recovered from personal search of the accused, conducted in presence of SI Bhagwan Singh and Ct. Sanjeev Kumar.
PW8 SI Bhagwan Singh and PW 3 Ct. Sanjeev also deposed about recovery of copy of notice under Section 50 of the Act on personal search of the accused conducted by ASI Paramjit Singh.
Refusal of the accused to exercise his legal right of being subjected to personal search in presence of Gazetted officer or Magistrate stands proved on record. It was appended to original notice Ex PW3/A and bears attestation of the aforesaid two FIR No. 115/08 11 constables. So both the attesting witnesses have proved their attestation.
From the material available on record, this Court finds that prosecution has established compliance with provisions of Section 50 of the Act before conducting personal search of the accused on the given date, time and place.
Therefore, this Court does not find merit in the contention raised by learned defence counsel that this is a case where provision of Section 50 of the Act have not been complied with.
Recovery of contraband
15. As regards recovery of contraband, PW3 HC Sanjeev, PW4 Ct. Satpal and PW8 SI Bhagwan Singh have been examined. It is in their statements that personal search of the accused led to the recovery of a polythene containing contraband. It was weighed and found to be 410 gms.
Two samples of 5 gms each were drawn from the lot and sealed by SI Bhagwan Singh with his seal. Remaining heroin was also converted into a parcel and similarly sealed. The case property was seized, Form FSL was prepared and impression of the seal was affixed on it as well.
It is in the statements of PW8 SI Bhagwan Singh, PW3 HC Sanjeev and PW4 Ct. Satpal that rukka was sent from the spot. According to HC Sanjeev while handing over to rukka to Ct. Satpal, the SI also handed over the sealed parcels, Form FSL and FIR No. 115/08 12 copy of seizure memo with specific directions.
After use the seal was handed over to HC Sanjeev. PW8 has deposed that after used he told delivered the seal use in sealing the case property to HC Sanjeev.
PW3 HC Sanjeev also deposed about delivery of seal to him by SI Bhagwan Singh. Even PW4 Ct. Satpal deposed about delivery of seal by SI Bhagwan to HC Sanjeev.
Nonjoining of independent witnesses
16. Learned defence counsel has contended that no independent witness was associated by the police despite ample opportunity and as such no reliance can be placed on the statements of police officials.
On the other hand, learned Addl. PP has pointed out that in the given facts and circumstances, nonjoining of witness from the public does not adversely affect the prosecution version regarding arrest of the accused and recovery from his possession, when all the witnesses to the arrest and recovery have made consistent statements and there is no discrepancy or material contradiction therein.
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 FIR No. 115/08 13 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." Learned defence counsel has pointed out that PW4 Ct. Satpal stated in his cross examination about making of departure entry in the log book by the IO and the driver of gypsy but this is in contradiction with the statements of PW3 and PW8.
It is true that PW3 HC Sanjeev Kumar stated in his cross examination that IO and the driver of the gypsy had not made any departure entry in the log book and PW2 also stated to have not made any entry in the log book but this contradiction is not material in nature.
As discussed above number of the vehicle finds mention in DD no. 12A Ex PW8/B and the time of departure of the raiding party, as per this entry was 10.15 am. In his defence, accused could summon log book of the gypsy but no such steps were taken. Therefore, this contradiction does not come to the aid of FIR No. 115/08 14 the accused.
Learned defence counsel has pointed out that according to PW3 residential houses are situated near the police station but according to PW4 Ct. Satpal no residential house is situated in front of the police station and that this contradiction makes their presence on the given date, time and place doubtful.
As per case of the prosecution, accused was apprehended at the corner of government school at Bagga crossing, Karol Bagh. Entire writing work was done regarding arrest and recovery at the spot. Therefore, the contradiction regarding the residential houses near or in front of the police station is of no significance.
It is true that PW3 and PW8 stated in their cross examination that they had not offered their search to the accused prior to conducting his search, but as noticed above, it is case of the prosecution from the very beginining while apprising the accused of his legal right to be searched in presence of the Gazetted officer or Magistrate, he was also informed that he could search even the police official and the government vehicle. Statements of witnesses recorded in cross examination cannot be read into isolation.
Learned defence counsel has pointed out that PW3, PW4 and PW8 have made contradictory statements regarding the number of documents signed by them.
FIR No. 115/08 15
As noticed above, these PWs have specifically testified about the documents prepared in their presence. PW3 and PW4 deposed about the documents signed by them as attesting witnesses as well. Therefore, the contradiction in their statements regarding the number of documents signed by them is of no significance.
In the given facts and circumstances, when no material contradiction or discrepancies has been pointed out by learned defence counsel in the statements of the prosecution, having regard to decision in Ajmer Singh's case (supra), this Court does not find any merit in the contention of learned defence counsel that nonjoining of witnesses from the public creates doubt in the entire story of the prosecution.
Registration of case and deposit of case property
17. Ex PW3/C is the recovery memo prepared at the spot.
It bears signatures of HC Sanjeev and Ct. Satpal, the two attesting witnesses. Contents of Ex PW3/C reveal that 410 gram of heroin was recovered from the accused; that two sampleseach of 5 grams were taken out of the lot, turned into parcels and sealed with seal bearing impression BS; and that after use SI Bhagwan Singh handed over the seal to HC Sanjeev. It also finds mention in Ex PW3/C ; that residue was also turned into parcels and sealed with the aforesaid seals before the seal was handed over to HC Sanjeev.
Rukka Ex PW2/B was despatched from the spot at 2.15 pm through Ct. Satpal with direction that he should deliver the same FIR No. 115/08 16 to the Duty Officer. Ct. Satpal was also given case property, FSL form and copy of recovery memo with the direction to produce the same before the SHO.
FIR Ex PW2/A came to be registered at 3 pm. This lends corroboration to the version of prosecution regarding despatch of rukk a at 2.15 pm. PW2 HC Ramesh Chand has proved recording of FIR Ex PW2/A on the basis of rukka EX PW2/B brought by Ct. Satpal to the PS. In his cross examination, PW2 HC Ramesh Chand stuck to the version of the prosecution that Ct. Satpal had brought to the police station rukka & parcels and then left for the office of the SHO.
PW4 Ct. Satpal deposed that on his appearance before the SHO, he produced parcels marked A, B & C, FSL form and the SHO affixed his seal on the parcels as well as FSL Form besides mentioning number of FIR. Further according to the witness, SHO then called the MHC(M) with register no. 19 and deposited the case property with MHC(M) and made DD entry.
Inspector M. L. Sharma concerned SHO has appeared as PW5 and supported the case of prosecution by stated that at 3.03 pm Ct. Satpal came to him and handed over three parcels marked A, B & C, one FSL form and copy of seizure memo; that parcels and form FSL were bearing seal and impression of seal of FIR No. 115/08 17 'BS'; that he then put his seal bearing impression "1 SHO NBR Delhi" on the parcels and form FSL; that he also wrote FIR number on the parcels; FSL form and copy of seizure memo besides putting his signatures.
PW5 further supported the case of prosecution by stating that he then called MHC(M) Mahesh to his office with register no. 19 at about 3.25 pm and handed over to him sealed parcels, copy of seizure memo and form FSL. He also proved to have made entry at Sl. No. 17 in register no. 19.
The contention raised by learned defence counsel is that the SHO was himself at the police station, even at the time of receipt of the information but it remains unexplained as to why SHO did not visit the spot to witness recovery. The contention is that the SHO deliberately did not want to become witness to the raid and as such no reliance should be placed on his testimony.
In his cross examination, PW5 SHO M. L. Sharma replied that there is no reason for him to conduct raid.
In case SHO opted not to visit the spot immediately on receipt of information regarding expected arrival of the accused; the entire prosecution case cannot be thrown away. The fact remains that the SHO has testified about the sealing of the parcels and affixation of impression of his seal on parcels, FSL form, in addition to have mentioned number of FIR and having FIR No. 115/08 18 initially put his signatures. All this rule outs possibility of tampering with the case property. Simply because the SHO opted not to himself go and be a witness to arrest and recovery is no ground to discard his statement and the entire prosecution version.
Learned defence counsel has submitted that according to PW8 SI Bhagwan Singh, he produced the secret informer before the SHO in his office at about 9.30 am but on the other hand, Inspector M. L. Sharma deposed that the secret informer was brought to his office by SI Bhagwan Singh at 11.30 am and that this creates doubt in the version of the prosecution.
It is true that in the chief examination of PW5 Inspector M. L. Sharma, it stands recorded that secret informer was brought to his office at about 11.30 am but there appears to be typographical mistake regarding time of arrival of the secret informer in the company of SI Bhagwan Singh. In the next sentence, PW5 Inspector M. L. Sharma stated that secret information was about expected arrival of a person at Bagga crossing between 11 - 11.30 am. This goes to show that secret information was received much prior to 11 am and secret informer cannot be said to have been brought to the office of the SHO at 11.30 am. Even otherwise, as is available from documentary evidence on record, discussed above, the information was received by SI Bhagwan Singh at 9.15 am and he took the secret informer to the office of the SHO at 9.30 am. This supports that typographical mistake has appeared about the time, while recording the statement of this witness.
Another contradiction pointed out by learned Defence counsel in the statements of PW5SHO and PW7 ASI Paramjit FIR No. 115/08 19 Singh is that according to the SHO, Ct. Satpal produced before him three parcels, one FSL form and copy of seizure memo at 3.03pm but PW7 Paramjit Singh stated to have left the PS at 3 pm and reached the spot at about 3.45 pm. The contention is that this contradiction creates doubt in the version of the prosecution regarding the investigation alleged to have been conducted.
A perusal of the evidence on record would reveal that Ct. Satpal left the spot at 2.15 pm and took along rukka, sealed parcels, FSL form and copy of seizure memo. According to PW4, he reached the police station at 3 pm. It is on the basis of this rukka that FIR came to be recorded at about 3 pm. This fact finds support from DD No. 16A available on record. Therefore, when SI Paramjit Singh PW7 stated that he left the spot at about 3 pm, he so stated in consonance with the version of the prosecution.
Defence evidence
18. Accused has examined DW1 Ashok Bhatia, DW2 Navrattan Sharma and DW3 Sh.
Sanjay.
According to these witnesses, on 11.12.2008, at about 8 am they saw two policemen taking away Amit accused saying that he was required for inquiry in connection with some matter and would be released after some time but ultimately they came to FIR No. 115/08 20 know that he had been falsely implicated in this case.
Had the accused been so taken away, any one of these DWs could make complaint with the senior police officers. However, there is nothing in their statements that they filed any complaint with any senior officer giving this version of having seen the accused being taken away by two policemen on 11.12.2008 at 8 pm. It is difficult to believe the version narrated by these three Dws, when as discussed above, prosecution has established its case regarding arrest of the accused and recovery of the contraband from his possession on 11.12.2008 at about 11.15 am at the corner of Government School, Bagga Crossing, Karol Bagh, Delhi.
Compliance with provisions of Section 57 of the Act.
19. It is case of prosecution that in compliance with provisions of Section 57 of the Act, SI Bhagwan Singh sent report Ex PW8/D to SHO Narcotics BranchInspector M. L. Sharma, who in turn sent sent the same to the office of ACP. ASI Paramjit Singh also complied with provisions of Section 57 by sending special Ex PW1/D, to the SHO, who in turned forwarded the same to ACP.
HC Karuna Karan Nayyar (PW1), from the office of ACP has proved reports Ex PW1/A and Ex PW1/B received in the office of ACP vide diary no. 1621 and 1622 both dated 12.12.2008. He FIR No. 115/08 21 also placed on record Ex PW1/E. This is a photocopy of relevant page of the diary register containing entry from Sl. No. 1621 to 1622.
Therefore, prosecution has established compliance with provisions of Section 57 of the Act.
Report of the Expert
20. It is case of prosecution that sample which was deposited with PW6 MHC(M) HC Mahesh Kumar was sent to FSL for analysis. PW6 has proved copy of Road Certificate Ex PW6/C and acknowledgment Ex PW6/B in proof of deposit of parcel and FSL Form at FSL. There is nothing in the statement of PW6 to say that case property was allowed to be tampered with by anyone during the period the same remained in the custody of the MHC(M).
From the material available on record, it is proved that samples were deposited at FSL on 19.12.2008 through Ct. Satpal.
So, prosecution has again ruled out possibility of tampering with the sample parcel before their safe arrival at the office of FSL.
Report of Expert
21. Ex PX is the report received from FSL. As per Ex PX, on the FIR No. 115/08 22 one sealed parcel received at FSL through Ct. Satpal on 19.12.2008, seals were intact and both the seals on the parcel tallied with the specimen seals as per forwarding letterForm FSL. The impression of the seals find mention in the result. On analysis of the contents of four sealed parcles, Dr. Madhulika Shrama, Assistant Director (Chemistry) observed as under: "1. The sample(s) "A" was examined by chemical tests, chromatography and instrumental methods.
2. On the basis of above examinations, the samples (s) 'A' was found to contain paracetamol, caffeine, Acetylocodeine, Monoacetylmorphine & Diacetylmorphine.
3. However, the percentage of diacetylmorphine was found to be 1.84%."
In the course of arguments, no submission has been put forth on behalf of accused to doubt the genuineness of reports Ex PX.
From the material available on record, coupled with the opinion of expert, this Court finds that prosecution has fully established that on 11.12.2008, accused Amit when apprehended at 11.15 am, kept in his possession 410 gram of Grey coloured powderheroin, at the corner of Government School, Bagga Crossing, Karol Bagh and as per analysis by the expert since the sample contained 1.84% diacetymorphine, this Court finds that the accused kept in his possession quantity of contrabandheroin little more than the smaller quantity. FIR No. 115/08 23
Conclusion
22. Accordingly, this Court holds Amit accused guilty of the said offence under Section 21 of of Narcotics Drugs and Psychotropic Substance Act. Amit accused is convicted thereunder.
Let convict Amit be heard on the point of sentence.
Announced in Open Court
on 23.01.2012 (Narinder Kumar )
Special Judge(Central)
Delhi.
FIR No. 115/08 24
IN THE COURT OF SH. NARINDER KUMAR
SPECIAL JUDGE (CENTRAL): DELHI
S. C. No. 05/2009
FIR No. 115/2008
PS Narcotics Branch
U/s 21 NDPS Act
In the matter of :
State
Versus
Amit .....Convict
ORDER ON SENTENCE
23.01.2012
Present: Sh. Rajiv Mohan, Addl. P.P. For State.
Convict Amit on bail, with counsel Sh. Alok Sharma. Heard on the point of sentence. Counsel for Convict Amit submits that he is 30 years of age and that leniency be shown on the point of sentence.
Learned Additional Public Prosecutor for the State has submitted that the quantity of the heroin recovered from Amit convict is more than the smaller quantity and as such the convict be sentenced accordingly.
Section 21 (b) of the Act provides rigorous imprisonment for term which may extend to ten years, and with fine which may extend to 1 lac rupees.
FIR No. 115/08 25
Having regard to the quantity of the contraband recovered from the convict, which is litter more than the small quantity, all the facts and circumstances of the case including that the accused is not a previous convict, this Court deems it a fit case to sentence the convict to undergo Rigorous Imprisonment for a period of nine months and to pay fine of Rs.10,000/.
Accordingly, convict Amit is hereby sentenced to undergo Rigorous Imprisonment for a period of nine months and to pay fine of Rs.10,000/ or in default of payment of fine, the defaulter shall undergo further Rigorous Imprisonment for three months, for the offence under Section 21 (b) of Narcotics Drugs and Psychotropic Substances 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.
Case property be disposed of in accordance with law on expiry of period for Appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 23.01.2012 (Narinder Kumar )
Special Judge(Central)
Delhi.
FIR No. 115/08 26