Delhi District Court
State vs . Imran on 1 June, 2011
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS
ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI
S.C. No. 05/09
FIR no. 58/09
PS Narcotics Branch
U/s 21 NDPS Act
State Vs. Imran
S/o Sh. Taffajul Khan
R/o Village Behra, PS Farid Pur,
Distt. Bareilly, UP
Date of Receipt : 25.05.2009
Date of Conclusion of arguments : 14.05.2011
Date of Decision : 30.05.2011
JUDGMENT :
1. The accused Imran has been chargesheeted by PS Narcotics Branch for commission of offence under Section 21 NDPS Act.
2. Story of prosecution in brief is that on 14.04.2009, at about 2.15 PM, a secret informer came to Narcotics Cell, Delhi and informed SI Sunil Jain that one Imran, resident of Berali, UP, who is involved in the supply of heroine in the areas of Delhi and he would come today, near Rukmani Devi Public Schook, Pitam Pura, between 4 PM to 4.30 PM to supply heroine to some one and if raid is conducted, he can be apprehended with contraband. On receipt of this information, SI Sunil Jain produced the secret informer before Ins. M.L. Sharma, who after satisfying himself, informed ACP Sh. S.R. Yadav and FIR no. 58/09 : State Vs. Imran : PS Narcotics Branch : Page 1 of 11 ACP gave instruction to conduct the raid. Secret information was reduced into writing. On the direction of senior officer, SI Sunil Jain constituted a raiding party comprising himself, Ct. Sohan Pal and Ct. Om Parkash. Raiding Team along with secret informer reached the spot. Public persons were asked to join the raiding party, but none agreed. Accused was apprehended. From his possession, 270 grams heroine was recovered. Mandatory provisions of NDPS Act were complied with. Samples were taken. FSL Form was filled in. Accused was arrested. After completion of the investigation, the charge sheet against the accused was filed in the Court. The copies were supplied.
3. Accused was charged for the offence punishable U/s 21 NDPS Act. The charge was read over and explained to the accused, to which he pleaded not guilty and claimed trial. Thereafter the case was fixed for prosecution evidence.
4. Prosecution in order to bring home the guilt of the accused, examined 10 witnesses and thereafter, prosecution evidence was closed.
5. Statement of accused was recorded u/s 313 Cr.P.C, wherein he denied the entire evidence and stated that he is innocent. He was lifted from the factory, where he was working and thereafter, he was falsely implicated in this case after obtaining his signatures on blank papers. Nothing was recovered from his possession and the contraband was planted upon him. He wished to lead evidence in his defence and examined Arun Garg as DW
1. Thereafter, the defence evidence was closed and the matter was fixed FIR no. 58/09 : State Vs. Imran : PS Narcotics Branch : Page 2 of 11 for final arguments.
6. I have heard arguments from the learned Additional Public Prosecutor for the State, learned Defence counsel for the accused and perused the record.
7. Ld. Addl. PP submitted that in the present case, three recovery witnesses PW5 Ct. Sohan Pal, PW8 Ct. Om Parkash and PW9 SI Sunil Jain were examined. All the three recovery witnesses have fully supported and corroborated each other and proved the recovery of 270 gram heroine from the possession of the accused. There is no reason to disbelieve their testimony. Though, there are some contradictions in the testimonies of the witnesses, but those are minor in nature and were bound to occur due to lapse of time. All these witnesses have stood through the test of cross examination and fully corroborated each other. Efforts were also made to join the public witnesses, but none obliged. The mandatory provisions of Sections 50 and 55 NDPS Act have duly been complied with. Recovered contraband was weighed and samples were taken from the case property and same were sealed at the spot by PW9 SI Sunil Jain. Seal after use was handed over to PW8 Ct. Om Parkash. From the spot, all the sealed pullandas, form FSL and copy of seizure memo and rukka were sent to the PS through PW5 Ct. Sohan Pal. PW5 reached the PS and handed over the rukka to the duty officer and sealed pullandas and documents to PW7 Ins. Akshay Kumar, who also affixed his seal of "AK" on all the pullandas and FSL Form and thereafter PW7 deposited the case property and FSL Form with PW1 HC Chand Ram, who made entry at serial no. 215 in register no. 19 proved as Ex. PW1/A. On 23.04.2009, sample sealed pullanda mark A FIR no. 58/09 : State Vs. Imran : PS Narcotics Branch : Page 3 of 11 with FSL Form were sent to FSL Rohini through PW2 HC Jagdish Prasad vide RC No. 116/21 proved as Ex. PW1/D. Ld. Addl. PP further submitted that as per FSL result, the sample/exhibit was found to contain 11.9% diacetylmorphine and 2.4% phenobarbital. It is prayed that as prosecution has discharged its onus and proved beyond doubt that accused was found in possession of contraband, he be held guilty and convicted.
8. Learned defence counsel submitted that accused was working in a factory. He was lifted from there while he was taking lunch and falsely implicated in this case. The fact that he was lifted from the factory is also evident from the testimony of DW1 Arun Garg, who stated that on that day, accused was in the factory and had gone to take lunch, when he was falsely implicated in this case.
9. I have gone through the testimony of DW1 and after going through his statement, I found that he was not even present, when the accused was apprehended by the police and he specifically stated that he does not know as to why the accused was apprehended by the police. Keeping in view the fact that DW1 was not present, when the accused was apprehended and he even does not know the reason of apprehension of the accused, I do not find any merit in the contention of the learned defence counsel that accused was falsely implicated in this case.
10. Ld. Counsel for the accused submitted that in the present case, prosecution has miserably failed to prove and establish its case that accused was found in possession of contraband. The story of the prosecution is that the secret FIR no. 58/09 : State Vs. Imran : PS Narcotics Branch : Page 4 of 11 information was received by PW9 SI Sunil Jain and thereafter, the police party reached the spot. They were having sufficient time and opportunity to join the public witnesses, but no public witness was joined. According to the story, accused was also apprehended from a public place, where public persons were available, but no sincere efforts whatsoever were made to join the independent witness and it was stated in a routine manner that efforts were made. Even no notice in witting was served upon the persons, who refused to join the proceedings. Even, at the time of apprehension of the accused, no public witness was joined. Ld. Defence counsel submitted that nonjoining of public witness itself creates a doubt about the truthfulness of the story of the prosecution. Ld. Counsel prayed that the benefit of the same be given to the accused and he be acquitted.
11. After going through the testimonies of the witnesses, I found that public persons were asked to join the raiding party, but none obliged. It is emphasized time and again that public witnesses must be joined, but experience shows that generally public persons do not come forward to become a witness in a police case fearing that they have to appear in the court as a witness. I am of the opinion that entire prosecution case cannot be thrown merely on the ground that no public witness was joined, when otherwise, prosecution story stands proved. The witnesses cannot be condemned merely on the ground that he is from the police force, when otherwise, he is trustworthy, reliable and have stood through the test of crossexamination. Having this opinion, I am fortified by the judgment dated 29.04.2010 of Hon'ble Delhi High Court in Crl. No. 841/2005 in case titled as Vijendra @ Behra Vs. State, P.P. Beeran vs. State of Kerala 2001 (9) SCC FIR no. 58/09 : State Vs. Imran : PS Narcotics Branch : Page 5 of 11 571 and Prayag Upnivas Avas v. Allahabad Vikas Pradhikaran, AIR 2003 SC 2302.
12. Ld. Defence counsel further submitted that mandatory provisions of NDPS Act have not been complied with and there is no compliance of Section 42 NDPS Act, through the secret information was received by PW9 SI Sunil Jain and he reached the spot only after receiving the same, but the intimation of the secret information was not sent to the senior officers. Notice u/s 50 NDPS Act was also not served upon the accused, which is mandatory requirement of the Act. Noncompliance of these proceedings vitiates the entire proceedings and benefit of the same be given to the accused and he be acquitted.
13. After going through the evidence and the record, I found that secret information was received by PW9 SI Sunil Jain and the secret information was reduced to writing vide DD no. 16 and same was sent to ACP and was forwarded by the Inspector M.L. Sharma PW6. HC Om Parkash, Reader to ACP was examined as PW4, who deposed that copy of DD no. 16 was received in the office of ACP on 14.04.2009 vide diary no. 266, photocopy of which is proved as Ex. PW4/A and photocopy of the information, which was received in the ACP Office is also proved as Ex. PW4/B. In view of the same, I do not find any merit in the contention that there is no compliance of Section 42 NDPS Act.
14. So far as the Section 50 NDPS Act is concerned, the record shows that notice u/s 50 NDPS Act was served upon the accused and same is proved FIR no. 58/09 : State Vs. Imran : PS Narcotics Branch : Page 6 of 11 on record as Ex. PW5/A. Evidence of the recovery witnesses also shows that notice was read over and explained to him orally and it was also told to him that it is his legal right to get his search conducted before the gazetted officer or Magistrate, who can be called there, but he refused to exercise his legal right and his refusal is proved on record as Ex. PW5/B. Keeping in view all these facts, in my opinion, there is due compliance of Section 50 NDPS Act in this case.
15. In the present case, there are three recovery witnesses i.e. PW5 Ct. Sohan Pal, PW8 Ct. Om Parkash and PW9 SI Sunil Jain. Secret information was received by PW9 SI Sunil Jain and on the basis of that information, recovery of contraband was effected from the possession of accused. As stated above, there is due compliance of Section 42 NDPS Act, as secret information was reduced to writing vide DD no. 16 proved on record as Ex. PW9/A and copy of the same was sent to the ACP, which was received in the ACP office vide entry no. 266, photocopy of the same is proved on record as Ex. PW4/A. All the recovery witnesses examined as PW5, PW8 and PW9 have stood through the test of crossexamination and proved the recovery of 270 gram heroine from the possession of the accused. There is nothing to disbelieve them. No such fact have been brought on record that they had any enmity with the accused or any reason to falsely implicate him in this case.
16. As discussed above, after complying the provisions of Section 50 NDPS Act, search of the accused was conducted, wherein one transparent polythene tied with rubber band and containing soil like colour powder was recovered FIR no. 58/09 : State Vs. Imran : PS Narcotics Branch : Page 7 of 11 from the left side front pocket of his wearing pant. PW9 checked the recovered powder with the help of field testing kit and it was found to be heroine. On weighing, it was found to be 270 grams heroine. Samples were taken as required under law. Case property was sealed on the spot by PW9 and thereafter, it was sent to the PS Crime Branch, where PW7 Ins. Akshay Kumar put his own seal on the pullandas and FSL Form in compliance of provisions of Section 55 NDPS Act. Case property was deposited in the mal khana with the seals intact, showing that there was no tampering with the case property. Sample was thereafter, sent to FSL Rohini for examination by MHCM through PW2 HC Jagdish Prasad vide RC No. 116/21, copy of which is proved on record as Ex. PW1/D. HC Jagdish Prasad after depositing the sample with FSL returned and handed over the acknowledgment proved as Ex. PW1/E to MHCM. Report of FSL shows that when the sample were received in the FSL, seals were intact and according to the report, exhibit was found to contain 11.9% diacetylmorphine and 2.4% phenobarbital. Further investigation was carried by PW10 SI Rajbir Singh, who arrested the accused. There is compliance of Section 57 NDPS Act, which were forwarded to the ACP office and were received there. Reports have been proved as Ex. PW4/D and Ex. PW4/E and the same were received in the ACP Office vide entry no. 267 and 268 proved on record as Ex. PW4/C. From the above evidence, it is clear that prosecution has proved the recovery of 270 gram heroine from the possession of the accused. All the three recovery witnesses have consistently deposed about the recovery and corroborated each other and have stood through the test of crossexamination. There is nothing on record to disbelieve them. FIR no. 58/09 : State Vs. Imran : PS Narcotics Branch : Page 8 of 11
17. In view of the above discussion, I found that prosecution has successfully proved its case that accused Imran was found in conscious possession of 270 grams heroine beyond doubt. I, therefore, hold the accused Imran guilty and convict him u/s 21 NDPS Act.
Announced in open Court
on today i.e. 30.05.2011 (V.K. BANSAL)
ADDL. SESSION JUDGE
ROHINI : DELHI : 30.05.2011
FIR no. 58/09 : State Vs. Imran : PS Narcotics Branch : Page 9 of 11
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS
ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI
S.C. No. 05/09
FIR no. 58/09
PS Narcotics Branch
U/s 21 NDPS Act
State Vs. Imran
S/o Sh. Taffajul Khan
ORDER ON THE POINT OF SENTENCE
01.06.2011
Present: Ld. Addl. PP for the State.
Convict in person with Sh. U.K. Giri, Adv.
Arguments heard on the point of sentence and perused the file. Learned counsel for the convict submitted that he is of young age. He is not a previous convict having no previous criminal record. He has already remained in custody for nine months. He is self employed. He is having one sister and five younger brothers and parents. He belongs to a very poor family and his entire family will have to suffer for no fault of their own, if he is sent behind the bars. It is prayed that a lenient view may kindly be taken.
Ld. Addl. PP submitted that convict was found in possession of 270 gram heroine. Offence of drugs is not against a person, but it is against the entire nation. It affects not only that fellow, but the entire generation and such convict shall not be dealt with leniency and prayed that severest punishment be awarded to him. FIR no. 58/09 : State Vs. Imran : PS Narcotics Branch : Page 10 of 11
Keeping in view the submissions and the fact that according to the judgments of Hon'ble Supreme Court and High Court, percentage of diacetylemorphine will determine the quantity of heroine and in the present case, it comes to 32.13 gram, which is more than small quantity, but less than commercial quantity and I found that it is not a case of commercial quantity. Keeping in view the young age and the fact that he has no previous criminal record, I sentence convict Imran to nine months rigorous imprisonment with fine of Rs. 5,000/ (Rs. Five thousand only) for the offence punishable u/s 21 NDPS Act, in default of payment of fine, to further undergo R.I for one months. Benefit of Section 428 Cr.P.C is given to him.
Case property be destroyed after the period for filing the appeal is over or no appeal is preferred. Copy of judgment and copy of order on sentence be given to the convict free of cost.
File be consigned to Record Room.
Announced in open Court
on 01.06.2011 (V.K. BANSAL)
ADDL. SESSION JUDGE
ROHINI : DELHI
FIR no. 58/09 : State Vs. Imran : PS Narcotics Branch : Page 11 of 11