Delhi District Court
State vs Vinod Sharma on 30 January, 2012
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus Vinod Sharma
S/o Sh Shyam Lal Sharma
R/o Village Maniyana,
Tehsil, PS & District
Hamir Pur,
Himachal Pradesh
SC No. : 20A/10
FIR No. : 242/10
U/S : 20 NDPS Act
PS : Hauz Khas
ORDER ON SENTENCE
Present: Sh R.K.Gurjar Addl. PP for the State.
Convict in JC with counsel Sh Mohit Mudgil.
After having convicted the accused for the
offence U/S 20(b)(ii)(C) of the NDPS Act vide my judgment
dated 27.01.2012 arguments have been heard today as
advanced by Sh R.K.Gurjar, Ld Additional PP for the State
and Sh Mohit Mudgil counsel for convict on the point of
sentence to be awarded to the convict. The submissions
made by the convict himself have also been considered.
2. It has been submitted on behalf of the State
that the maximum term of imprisonment be imposed upon the
convict and he does not deserve any leniency from this
SC NO. 20A/10 State Vs Vinod Sharma
2
court as he had been found guilty of possessing a
commercial quantity of charas. The offence punishable U/S
20(b)(ii)(C) of the NDPS Act, which has been proved
against the convict, carries a minimum term of rigorous
imprisonment for a period of 10 years extending up to 20
years and also a fine of not less than Rs 1 Lac and
extending up to Rs 2 Lacs.
3. On the other hand, it is submitted on behalf of
convict that he is aged about 31 years only and has a
family consisting of his old parents, wife and two minor
children aged about 5 and 2½ years to support. It is
also being submitted that there is no record of any other
involvement of the accused in any similar offence and
lenient view be taken in awarding sentence to the
convict.
4. I have thoughtfully considered the above
submissions being advanced on the point of sentence.
Though the prosecution was successful in establishing on
record the possession of a commercial quantity of charas
by the accused, but during investigation no evidence
could be collected to show that the accused himself was
the main supplier of the above contraband substance or
he belonged to an established drug syndicate. The
possibility of the above contraband substance being
carried by the accused for some small monetary
SC NO. 20A/10 State Vs Vinod Sharma
3
considerations also cannot be ruled out.
5. Hence, keeping in view the age, family
background and all other attending circumstances, the
convict is being awarded the minimum sentence of rigorous
imprisonment for a period of 10 years and a fine of Rs 1
Lac for the abovesaid offence. In case of non payment of
fine he shall further undergo simple imprisonment for a
period of six months. He is stated to be in the judicial
custody since the day of his arrest in this case and had
never been on interim bail. The period of custody already
undergone by him is allowed to be set off in terms of the
provisions of Section 428 Cr.P.C. Fine has not been paid.
Let him to undergo the above sentence as per law.
6. A copy of the judgment and the order on
sentence be supplied to the convict free of cost. The
case property be also confiscated and disposed of as per
law, after the expiry of the period of limitation for
filing of the appeal and subject to the outcome of any
appeal to be filed against this judgment and order on
sentence. File be consigned to the record room.
Announced in the open
court on 30.01.2012 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC NO. 20A/10 State Vs Vinod Sharma
4
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus Vinod Sharma
S/o Sh Shyam Lal Sharma
R/o Village Maniyana,
Tehsil, PS & District
Hamir Pur,
Himachal Pradesh
SC No. : 20A/10
FIR No. : 242/10
U/S : 20 NDPS Act
PS : Hauz Khas
Date of institution : 16.08.2010
Date of reserving judgment : 19.01.2012
Date of pronouncement : 27.01.2012
J U D G M E N T
The accused has been sent to face trial by SHO PS Hauz Khas on allegations that on 14.07.2010 at about 08.30 PM, at the service road footpath, ring road, South Extension Part II, New Delhi, near the side of AIIMS Hospital, within the jurisdiction of PS Hauz Khas, he was apprehended when he was found to be in possession of 3.5 KG of charas in the form of 36 'tikkinuma squares' in contravention of the provisions of Section 8(C) of the NDPS Act, which is an offence punishable U/S 20 (b)(ii) (C) of the said Act.
SC NO. 20A/10 State Vs Vinod Sharma
5
2. The prosecution story, in brief, is that on
14.07.2010 at about 03.45 pm a secret information was received by PW5 ASI Bijender Singh in the PS that one person named Vinod Sharma, who was a resident of Himachal Pradesh and used to supply charas in Delhi from Himachal Pradesh, will come at the underpass near the AIIMS Hospital, i.e. under the road leading towards South Extension Part II, between 06.00 pm to 08.00 pm to supply charas to someone. The above information was conveyed by PW5 to the SHO/PW2 Inspector Ramesh Kalsan and the secret informer was also produced before the SHO, who after satisfying himself regarding the correctness of the above information had also informed the ACP, Hauz Khas telephonically. PW5/ASI Bijender Singh had also got recorded one DD No. 20A Ex. PW5/A at the PS in this regard and had sent the same to the ACP, through the SHO, and he was directed by his senior officers to proceed further in the matter.
3. It is alleged in the chargesheet that thereafter a raiding team consisting of PW7 Ct. Anil, PW8 HC Sanjeev Kumar and some other police officials was constituted by the IO/PW5 ASI Bijender Singh, after he had shared the secret information with them, and they all in plain clothes had reached at the spot at about 05.00 pm. IO/PW5 had requested 4/5 passersby to join the raiding party, but none had agreed and no legal action SC NO. 20A/10 State Vs Vinod Sharma 6 could also be taken against them for their such refusal due to the constraints of time. The members of the raiding team had taken their positions at the spot and at about 08.15 pm they had seen one person coming from the side of AIIMS Hospital and going towards South Extension Part II while holding one raxine bag on his shoulder. The above person stood on the footpath near the above underpass and he was pointed out by the secret informer to be the same person about whom the above information was given and the said person had stood there for about 15 minutes in wait for someone and then he had started going back.
4. It is also alleged in the chargesheet that then the above person was apprehended and his identity was revealed as the accused Vinod Sharma. The accused was told about the secret information regarding his being in possession of charas and was also told that his search was to be conducted and he was further explained that he had a legal right to be searched in the presence of a Magistrate or a Gazetted Officer and the IO/PW5 had also offered his search as well as the search of the other members of the raiding team to the accused before taking his search. The IO/PW5 had also served upon the accused a notice U/S 50 of the NDPS Act Ex. PW5/B (carbon copy) in this regard and vide his reply Ex. PW5/C, which was recorded on Ex. PW5/B by the IO/PW5 himself on the SC NO. 20A/10 State Vs Vinod Sharma 7 request of the accused as he was illiterate, the accused had refused for his search before the above officers or for the search of the police party.
5. It is also alleged that the IO/PW5 had again requested few passersby to join the proceedings but none had agreed. Then the contents of the above raxine bag, which was of brown colour and having 'Adidas' written on one side, carried by the accused were checked by him and besides some clothes, it was found to contain one other cloth bag of red colour on which 'R.S. Dress Maker, Prop. Ramesh Thakur, New Road, Hamir Pur (H.P.)' was written on both sides. The above cloth bag was also found to contain one white polythene bag containing some black colour sticky substance in the form of 36 square 'tikkiyas' and a foul smell was emanating therefrom and it appeared to be charas. Some substance from the same was tested by the IO/PW5 with the help of a field testing kit and it was confirmed to be charas and weight of the same, with polythene, was found to be 3.5 kg in total. The IO/PW5 had then taken out some substance from each of the above 'tikkiyas' and had drawn two samples of 50 gms each and the same were kept in two separate polythenes and were converted into separate cloth pullandas and marked as A & B. The remaining charas was kept in the same polythene and cloth bag and it was put in the same raxine bag which, alongwith the other cloths found SC NO. 20A/10 State Vs Vinod Sharma 8 therein, was also converted into a separate cloth pullanda and marked as C. All the three pullandas were then sealed by the IO with the seals of BS, form FSL was filled up and the same seal affixed thereon and the seal after use was handed over to PW7 Ct. Anil and the pullandas of the samples and remaining case property, alongwith the FSL form were taken into possession vide seizure memo Ex. PW5/D.
6. It is further alleged in the chargesheet that then the IO/PW5 had prepared the rukka Ex. PW5/E and had handed over the same to PW8 HC Sanjeev Kumar for registration of a case at the PS. The above three sealed pullandas, FSL form and a carbon copy of the seizure memo were also handed over to PW8 for entrusting the same to the SHO and on the basis of the above rukka FIR Ex. PW1/B of this case was registered. The above pullandas and documents were handed over by the SHO to the MHC(M) of the PS for deposit in the police malkhana.
7. Further investigation of this case was assigned to PW6 SI Narender Kumar and after reaching at the spot he was handed over the custody of the accused as well as the relevant documents of this case and he had prepared the site plan Ex. PW5/F of the spot on the pointing out of the first IO/PW5, arrested the accused vide arrest memo Ex. PW6/A and conducted his personal search vide SC NO. 20A/10 State Vs Vinod Sharma 9 memo Ex. PW6/B, in which the original notice U/S 50 of the NDPS Act, some cash amount and other articles were recovered. He had also subsequently sent the information/report U/S 57 of the NDPS Act Ex. PW6/C to his senior officers and the sample pullandas to the FSL and pending the receipt of the FSL result, he had prepared the chargesheet of the case for filing in this court.
8. The chargesheet was filed in this court on 16.08.2010 and cognizance thereof was taken on the same day. A prima facie case for the offence U/S 20 (b)(ii) (C) of the NDPS Act was also found to had been made out against the accused and hence a charge for the said offence was framed against him by this court on 20.11.2010.
9. The prosecution in support of its case has examined 9 witnesses on record (the witness at serial no. 9 has been inadvertently numbered as PW10 because no witness is found to be examined as PW9) and their names and the purpose of examination etc. is being stated herein below:-
10. PW1 ASI Yaad Ram is the Duty Officer who had recorded the FIR Ex. PW1/B of this case and had also made the endorsement Ex. PW1/A on the original rukka in this SC NO. 20A/10 State Vs Vinod Sharma 10 regard.
11. PW2 Inspector Ramesh Kalsan was posted as ATO, Hauz Khas on the day of incident and was also looking after the work of SHO of the above PS. He has stated that after he was informed by ASI Bijender Singh about the above secret information, he had informed his senior officers about the same and had also directed the above ASI to conduct a raid. He has also stated that subsequently HC Sanjeev Kumar had come to his office alongwith the three sealed pullandas sealed with the seals of BS, FSL form and a copy of the seizure memo and he had affixed his seals of RK on the parcels and the sample form and had also written the FIR number etc. thereon after obtaining the same from the duty officer and then the same were deposited in the malkhana. He has further stated that a report U/S 57 of the NDPS Act was also subsequently sent by SI Narender Kumar to the office of the ACP.
12. PW3 HC Afsar Pasha is the Reader of the ACP, Hauz Khas and he has produced on record the reports dated 14.07.2010 & 15.07.2010, U/S 42 & 57 of the NDPS Act respectively as Ex. PW3/A & PW3/B, which both were received in their office vide Diary No. 4073 and 4077 respectively and were seen and endorsed by the then ACP. Copies of the above diary entries have also been proved SC NO. 20A/10 State Vs Vinod Sharma 11 on record by him as Ex. PW3/C & PW3/D respectively.
13. PW4 HC Lallu Ram was the MHC(M) of PS Hauz Khas on the date of incident and he has deposed regarding the deposit of the above pullandas of sample and remaining case property, alongwith FSL form and a copy of the seizure memo, by the SHO in the police malkhana on 14.07.2010 vide entry No. 1881 of the Register No. 19. He has also deposed regarding the deposit of the personal search effects of the accused by SI Narender Kumar on 15.07.2010 vide entry No. 1887 and has proved on record a copy of the above entries as Ex. PW4/A. He has also proved on record a copy of the road certificate No. 75/21 dated 30.07.2010 vide which one sample pullanda was taken to FSL, Rohini by SI Narender Kumar and has also stated that the acknowledgment Ex. PW4/C of the deposit thereof was subsequently returned to him by SI Narender Kumar. On 28.10.2010 the FSL report and the remnant of the sample were also received by him in the malkhana.
14. PW5 IO/ASI Bijender Singh, PW7 Ct. Anil and PW8 HC Sanjeev Kumar are all the members of the raiding team which had apprehended the accused with the above contraband substance. They all have broadly deposed on the above lines of the prosecution story and various documents connected with the spot investigation of this case. They all have also identified the accused and the SC NO. 20A/10 State Vs Vinod Sharma 12 remnant of the sample sent to FSL as Ex. P1, the second sample drawn from the above contraband substance as Ex. P2, the remaining contraband substance as Ex. P3 and the above bag and clothes etc. found therein as Ex. P4 collectively.
15. PW6 SI Narender Kumar is the second IO and he has also almost deposed on the above lines of the prosecution story regarding his arrival at the spot and the investigation conducted by him subsequent to the registration of the case. He has also subsequently sent the above report/information U/S 57 of the NDPS Act to his senior officers and the sample pullanda to the FSL. Subsequently, after having been recalled U/s 311 Cr.PC on an application of the prosecution, he has also identified the the original notice U/s 50 NDPS Act and the other articles recovered in the personal search of the accused as Ex. P5 and P6 respectively.
16. PW10 (actually PW9) ACP Mehar Singh was posted as such in sub-division Hauz Khas on 14.07.2010 when he was informed about the above information and he had given directions for a conduction of the raid. Subsequently, he had also received and seen the copy of the DD no. 20A Ex. PW3/A (another copy thereof is Ex. PW5/A which was also attested by him) on 14.07.2010 and the information U/S 57 NDPS Act Ex. PW3/B on 15.07.2010.
SC NO. 20A/10 State Vs Vinod Sharma 13
17. Besides the above, the FSL result of this case was also tendered on record by the Ld Additional PP for the State as Ex. PX, which is per-se admissible in evidence.
18. After the conclusion of the evidence of the prosecution, the statement of the accused U/S 313 Cr.P.C. was recorded by this court and all the incriminating evidence brought on record by the prosecution was put to him and the same was denied by him to be incorrect. He has claimed himself to be innocent and to have been falsely implicated in this case while saying that he was picked up from his relative's house, which he had happened to visit, and he was taken to PS where some papers were forcibly got signed from him and the alleged contraband was not recovered from him. Though he had initially chosen to lead defence evidence, but however, no defence evidence was actually led by him on record.
19. I have heard the arguments advanced by Sh R.K.Gurjar, Ld Additional PP for the State and Sh Mohit Mudgil, Ld counsel for the accused and have also appreciated the evidence led on record and the other record of the case.
20. The first challenge by Ld defence counsel to SC NO. 20A/10 State Vs Vinod Sharma 14 the prosecution story is that the mandatory provisions of Section 42 of the NDPS Act have not been complied with as the above secret information had not been reduced into writing by the IO/PW5 ASI Bijender Singh and the same was not communicated by him to his immediate official superior. In this regard it is observed that the above argument of Ld defence counsel is without any basis because the provisions of Section 42 of the NDPS Act are not found applicable to the facts and circumstances of this case because the above section is applicable only when the secret information received is of the nature mentioned therein, i.e when it pertains to the concealment of any narcotic drug or psychotropic substance etc. in any building, conveyance or any enclosed place and not to every type of information under the said Act or the information which may pertain to the possession etc. of such a substance.
21. Though the provisions of Section 42 NDPS Act were not legally required to be complied with in this case, but even then it has been established by the prosecution on record that the above secret information received by the IO/PW4 was got reduced by him in writing vide DD No. 20A, an attested carbon copy of which has been proved on record as Ex. PW5/A. Another attested copy of the above information has also been brought and proved on record as Ex. PW3/A and the same was duly put SC NO. 20A/10 State Vs Vinod Sharma 15 up by the IO/PW4 before the SHO concerned/PW2 Inspector Ramesh Kalsan and bears the signatures and endorsement of the SHO/PW2 at point B thereon. The same was also forwarded by him to the ACP concerned/PW10 Sh Mehar Singh and it was duly received in the office of the ACP vide entry no. 4073 of the dak register dated 14.07.2010 itself, i.e. the date of receiving of the above information. Even a copy of the above relevant entry stands proved on record as Ex. PW3/C in the depositions of PW3 HC Afsar Pasha who was working as Reader to the ACP concerned at the relevant time. It has also come on record specifically during the statement of the then ACP/PW10 that the same was seen and endorsed by him and his endorsement at point A thereon also stands proved on record. Hence, even in the absence of any legal requirement for reducing of the above secret information into writing, the reduction of the same in writing in the form of DD No. 20A Ex. PW3/A (also Ex. PW5/A) gives additional credibility to the oral testimonies of the prosecution witnesses and the prosecution case as a whole.
22. The next contention of Ld defence counsel is that no public witness has been joined by the IO/PW4 at the time of alleged recovery of the contraband substance from the accused though he was having sufficient time to join the same and the public persons were also available SC NO. 20A/10 State Vs Vinod Sharma 16 as the recovery has been effected on a public road. It has also been argued that the explanations given by the recovery witnesses for non joining of the public witnesses are routine explanations and the same should not be believed. It has also been pointed out that though the members of the raiding team had reached at the spot at around 5 PM and the accused had reached there at about 8/8.15 PM, but the IO/PW4 could not join a single public witness even despite there being a long gap of about 3 hours between their reaching at the spot and the arrival of the accused.
23. Though public witnesses, if joined, may provide additional credibility to the prosecution version, but it has also been held time and again that the joining of the public witnesses is not a hard and fast rule and the depositions of only the official or police witnesses regarding the recovery can not be disbelieved merely because of the reasons of their official capacity. It has also been held that the presumption of honesty is as much available to a police witness as the same is available to any other official witness. It cannot be ignored that the public persons are always reluctant to join the police investigations because of different reasons, like the harassment which they may have to face in joining the same and attending the court hearings and the prolonged trial of the case etc. and sometimes it SC NO. 20A/10 State Vs Vinod Sharma 17 may be even hard to find public witnesses for joining the police investigations. The effect of non joining of the public witnesses is only that the court has to view the statements of the police or other official witnesses with caution and circumspection and has to test the veracity thereof before any reliance can be placed upon them for arriving at any conclusion regarding the guilt of the accused.
24. Reference in this regard can be made to a judgment of the Hon'ble Supreme Court in case Ajmer Singh Vs State of Haryana 2010 (2) SCR 785 : (2010) 3 Supreme Court Cases 746 wherein the following observations were made:
"19. The learned counsel for the appellant has submitted that the evidence of the official witnesses cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned counsel. It is clear from the testimony of the prosecution witnesses PW3, Paramjit Singh Ahalwat, DSP, Pehowa; PW4, Raja Ram, Head Constable and PW5, Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries SC NO. 20A/10 State Vs Vinod Sharma 18 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.
Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced.
20. We cannot forget that it may not be possible to find independent witness at all place, at all time.
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.
25. Reference in this regard can also be made to a judgement of our own High Court in case Union of India SC NO. 20A/10 State Vs Vinod Sharma 19 Vs Victor Namdi Okpo 2010 (4) JCC (Narcotics) 188 wherein their Lordships had held that the non joining of public witnesses by the prosecution is not always fatal.
26. Therefore, the prosecution case cannot be disbelieved merely on the ground of non joining of the public witnesses if the depositions made by the police witnesses are found to be convincing and acceptable. Moreover, the depositions made by the IO/PW5 and the other witnesses of recovery clearly show that efforts and requests were made by the IO/PW5 to join few public persons twice, i.e once prior to the apprehension of the accused and the other after the service of notice U/S 50 of the NDPS Act upon the accused and before the search of his bag, but none of them had agreed to join and the IO/PW5 has also stated that no proceedings could be conducted against any of them keeping in view the circumstances at the given time.
27. In view of the above judgments, the judgments in cases Rattan Lal Vs The State (Delhi) 1987 (2) Crimes 29, Sunari Alias Chamari Vs The State 34 (1988) Delhi Law Times 124, Mohd Shamim Vs The State 1990 Crl.L.J. 2521, Anoop Joshi Vs State 1992 JCC 329 = 1992 (2) Recent Criminal Reports 342 (DHC), Munni Lal Vs The State 1995 JCC 110, Chand Khan Vs The State 2000 III AD (Delhi) 850, Prithvi Pal Singh @ Munna Vs State 2000 (1) JCC SC NO. 20A/10 State Vs Vinod Sharma 20 (Delhi) 274 = 2000 III AD (Delhi) 181, and Mohd Raffique Vs The State 2000 III AD (Delhi) 861 being relied upon by Ld defence counsel for accused are of no use. As far as the argument of Ld defence counsel regarding the availability of about 3 hours, i.e from 5 PM when the police officials had arrived at the spot till the apprehension of the accused at about 8/8.15 PM, is concerned, the same is not true because though the police team had reached there at about 5 PM but they could have never been sure that the accused would be reaching there so late as the information was that he will reach there with the contraband substance between 6 PM to 8 PM.
28. It has also been argued by Ld defence counsel that there is a delay of about 15 days in sending the samples of this case to the FSL for testing and since there is no explanation on record from the prosecution side for the above said delay, the same is fatal for the prosecution case and the accused is entitled to be acquitted on this ground only.
29. On perusal of the case file it is found that the IO/PW5, PW7 as well as PW8 have all stated that the pullandas of the samples as well as of the remaining case property were prepared and sealed by the IO/PW5 at the spot itself and the seals of BS were affixed thereon. It has also been deposed by all of them that the above SC NO. 20A/10 State Vs Vinod Sharma 21 sealed pullandas, alongwith the FSL Form and a copy of the seizure memo, were taken from the spot to the PS by PW8 HC Sanjeev Kumar and it has also come on record in the depositions of PW8 as well as the SHO/PW2 that the SHO had also affixed his seals of RK on the parcels as well as the FSL Form, when the same were entrusted to him by PW8.
30. It has further been proved on record that all the above sealed pullandas, alongwith the documents, were deposited by the SHO/PW2 with the MHC(M)/PW4 HC Lallu Ram in the malkhana vide entry no. 1881 of the register no.
19, which duly stands proved on record as Ex. PW4/A. PW4/MHC(M) has specifically told about the above seals of BS and RK found affixed on the above pullandas and the FSL Form. Even in the FSL result Ex. PX, which is per-se admissible in evidence U/S 293 Cr.P.C., the above descriptions of the seal is found to be mentioned and it is also mentioned therein that the above seals affixed on the sample pullandas were found to be in intact condition and had tallied with the specimen seals as per the forwarding letter (FSL Form). Further, in the statements of the MHC(M)/PW4, PW6 SI Narender Kumar who had taken the above sealed sample pullanda to FSL on 30.07.2010 or any other witness, nothing has come on record from which it can be presumed or inferred that the sealed pullandas of the samples or the remaining case property were SC NO. 20A/10 State Vs Vinod Sharma 22 tampered with at any stage. The suggestion given to PW4/MHC(M) regarding the tampering with the pullandas was denied by him to be incorrect and no suggestion at all was given to either PW6/SI Narender Kumar or to any other witness regarding the same.
31. It cannot be ignored that the police officials of almost every police station in Delhi are over burdened with the quantum of the investigation and other works assigned to them and the sending of the exhibits of a case for testing also requires certain formalities to be completed, like obtaining the administrative sanctions of the concerned senior officers and priority letters etc. Hence, merely a delay of 15 days or so in sending of the sample pullanda to FSL cannot be held to be fatal for the prosecution case, unless there is anything on record to show or suggest that there was any tampering with the above pullandas at any stage or the same had actually caused any prejudice to the accused. In the present case the Ld defence counsel has not been able to point out any circumstance from which such tampering with the pullandas can be seen or inferred and moreover, PW6/SI Narender Kumar has explained that the above delay was because of getting the priority letter from the DCP, Crimes & Railways.
32. In case of Ramesh Kumar Rajput @ Khan Vs The SC NO. 20A/10 State Vs Vinod Sharma 23 State of NCT of Delhi-MANU/DE/0786/2008 there was a delay of 13 days in sending the sample pullandas to the CFSL, but the same was not considered to be fatal keeping in view the fact that there was nothing on record to suggest or to infer from that the sample pullandas were tampered in the police malkhana. In a recent case of Bilal Ahmad Vs State-2011 III AD (Crl.) (DHC) 293 also even a delay of 59 days in sending of the samples was considered to be not fatal in the absence of any such evidence or inference of tampering with the sample pullandas on the basis of the record. Hence, in view of the above, this argument of Ld defence counsel also carries no weight.
33. The next argument of Ld defence counsel is that the seals used in this case were kept by the police officials themselves and the same were not handed over to any independent person or witness and hence there was every likelihood of misuse of the above seals or the tampering with the pullandas of the case property and sample. As per the prosecution story, the seal of BS used by the IO/PW5 was given to PW7 HC Sanjeev Kumar and the IO/PW5 has also stated in his cross examination that the same remained with him till the sample pullanda was deposited in the FSL and during this period the above seal was not needed by him. The SHO/PW2 has also stated specifically that his seal of RS after use was kept by SC NO. 20A/10 State Vs Vinod Sharma 24 him with himself for safe custody and it has also been proved on record that the pullandas were deposited by him in the police malkhana without any undue delay on his part in depositing the same.
34. Nothing has come out during the statements of the above witnesses or the other prosecution witnesses to show any such misuse of the above seals. It has also been discussed above in the preceding paragraphs that no tampering with the above pullandas can be seen or inferred from the record and hence, simply because the above seals were not handed over to any public or independent person, no such presumption or inference of tampering can be drawn as there is no requirement under the NDPS Act or the Rules framed thereunder that the seals should be handed over to some independent person. Reference in this regard can be made to the case of Siddqua Vs Narcotics Control Bureau 137 (2007) DLT 500.
35. The Ld defence counsel has also raised some doubts regarding the competency of the IO/PW5 ASI Bijender Singh to seize the above contraband substance while stating that a police officer below the rank of a Sub Inspector is not competent to exercise the powers U/S 42 and 43 NDPS Act etc. However, the judgment in case Kamal Thakur Vs The State (Delhi Admn.) 1995 JCC 76 dispels the above doubt as vide notification no. F. SC NO. 20A/10 State Vs Vinod Sharma 25 10(76)/85-Fin. (G) issued by the Administrator of the Union Territory of Delhi, in exercise of the powers conferred by sub-section (1) of Section 42 of the NDPS Act and read with the Government of India, Ministry of Home Affairs Notification No. S.O.818(E) dated 08.11.1985, which has been reproduced in the above judgment, every police official superior in rank to a Constable, besides the other designated officers of the other departments, has been empowered to act under the abovesaid provisions.
36. Besides the above, Ld defence counsel has also pointed out some other discrepancies and contradictions in the evidence of the prosecution to make out a case for acquittal of the accused. It has been argued that there are contradictions in the prosecution story as to who had informed the ACP/PW10 regarding the above secret information, the time when the rukka was brought in the PS by PW8 HC Sanjeev Kumar and further that the IO had not been able to remember and tell so many things during his cross examination. However, on appreciation of the prosecution evidence, it has been found that none of the above contradictions or discrepancies is found to be genuine or material enough to be made a ground for discarding the entire prosecution evidence. It has to be kept in mind that the police officials in their day to day work are connected with investigation of so many SC NO. 20A/10 State Vs Vinod Sharma 26 cases and they cannot be expected to remember each and every minute detail of the events or the sequence in which the same had taken place and hence, they cannot be expected to recollect and reproduce such details in the same manner in which the same had happened.
37. There are consistent and corroborative depositions made by all the three members of the raiding team regarding the apprehension of the accused on the abovesaid date, time and place and the recovery of the above contraband substance from his possession. They all have specifically deposed that the accused was apprehended on the pointing out of the secret informer and their depositions with regard to the process of seizure and sealing have also been found to be consistent in nature. IO/PW5 as well as PW7 have both stated specifically that the scale used in weighing the contraband substance was a manual scale and it has further come on record that the cloth bag containing the contraband substance found in the above raxine bag carried by the accused at the time of his apprehension was of some dress making shop, whose proprietor was one Sh Ramesh Thakur, situated in District Hamirpur, Himachal Pradesh. The accused Vinod Sharma is also a resident of the above district in Himachal Pradesh and the printing found on the above cloth bag also strengthens the credibility of the prosecution story SC NO. 20A/10 State Vs Vinod Sharma 27 regarding the above contraband substance found in possession of the accused having been brought by him from his native state of Himachal Pradesh.
38. It is not the case of the accused that he was having any enemical relations with any member of the raiding police team or was even known to them prior to the date of incident of this case. Though a vague plea of false implication of the accused has been taken during the course of giving suggestions to the prosecution witnesses and it has also been raised during the final arguments, but the above plea has remained vague and could not be substantiated as no reasonable ground for false implication of the accused in this case could be made out by Ld defence counsel or the accused. The suggestions in this regard given to the prosecution witnesses were duly denied by them to be incorrect.
39. Though it was also suggested to the IO/PW5 that the accused could not even put his signatures, but on comparison by this court the signatures in the name of the accused as appearing on the seizure memo Ex. PW5/D of the charas, carbon copy of notice U/S 50 of the NDPS Act Ex. PW5/B and the reply Ex. PW5/C given by the accused to the abovesaid notice are found matching with the signatures of the accused as appearing on the charge framed against him by this court. The very fact that SC NO. 20A/10 State Vs Vinod Sharma 28 the accused has signed on the charge belies the contention of Ld defence counsel that he was not even able to put his signatures.
40. Further, though the accused in his statement U/S 313 Cr.P.C has claimed that he was picked up from near his relative's house, whom he had come to visit, and was taken to PS where all the documents were forcibly got signed from him, but no defence evidence was led by the accused on record to substantiate his above plea as though initially he had chosen to lead evidence but subsequently he had closed the same. He has not even disclosed the name and details of his above relative on record, what to say of examining him in his defence.
41. It cannot be ignored that the accused is a resident of Himachal Pradesh and he has also not even brought on record any purpose of his visit to Delhi. No complaint had ever been made after the implication of the accused in this case to any senior police officer or to any other authority agitating his alleged false implication in this case.
42. In the FSL report Ex. PX the sample taken out of the above contraband substance recovered from the accused has been confirmed to be of charas. In the SC NO. 20A/10 State Vs Vinod Sharma 29 table notified under the NDPS Act a quantity of 100 Grams of charas has been prescribed to be a 'small quantity' and 1 Kg has been prescribed to be the 'commercial quantity' of the above contraband substance. Hence, the quantity of 3.5 Kg of charas (with polythene) found in possession of the accused is much more then the prescribed commercial quantity of 1 Kg as the weight of the empty polythene may be only few grams.
43. In view of the above discussion, it is held that the prosecution has successfully established the guilt of the accused Vinod Sharma for the offence punishable U/S 20(b)(ii)(C) of the NDPS Act. He is accordingly convicted for the above said offence. Let he be heard on the quantum of sentence.
Announced in the open
court on 27.01.2012 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC NO. 20A/10 State Vs Vinod Sharma