Delhi District Court
State vs 1. Sadab on 19 August, 2011
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus 1. Sadab
S/o Mohd. Rahis
R/o L-170, Sundar Nagar,
PS Nand Nagri, Delhi.
2. Azad
S/o Sh. Hamshar Ali
R/o Nasbandi Colony,
Budh Bazar, Loni-2,
PS Loni, U.P.
3. Mohd Rahis
S/o Sh. Ali Hussain
R/o Village Hasan Pur
PS Karnel Ganj,
District Gonda, U.P.
SC No. : 41A/05
FIR No. : 528/05
U/S : 20 NDPS Act
PS : K.M. Pur
ORDER ON SENTENCE
After having convicted all the three accused
persons for the offence U/S 20(b)(ii)(C) of the NDPS Act
for possessing 59 kg of ganja, vide my judgement dated
19.08.2011, I have heard the submissions made by the Ld.
Additional PP for the State as well as Sh. S.S. Dass, Ld.
SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05
PS: K.M. Pur
2
Counsel representing the convict Sadab and Sh. M. Nabi, Ld.
Counsel representing the other two convicts on the point of
sentence to be awarded to the convicts.
2. The offence punishable U/S 20(b)(ii)(C) which has
been proved against the convicts carries a minimum term of
rigorous imprisonment for a period of 10 years extending
upto 20 years and also a fine of not less than Rs. 1 Lac
and extending upto Rs. 2 Lacs.
3. It has been submitted by the convict Sadab that he
is having old parents and three unmarried younger brothers
and sisters in his family and even he himself is only aged
about 30 years and still unmarried. The convict Rahis has
stated that he is only aged about 24 years and is also
unmarried and he is having the responsibility to maintain
his widow mother and five younger brothers and sisters as
only one of his brothers is earning some amount which is
not sufficient for maintenance of the entire family
members. The convict Azad has also stated himself to be
aged about 26 years and also unmarried and he is also
having a family consisting of one elder brother, widow
mother and three younger brothers.
4. Ld. Defence Counsels have submitted that in view
of the above background and the submissions made by the
convicts regarding their family condition and liabilities,
SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05
PS: K.M. Pur
3
a lenient view be taken in awarding sentence to them and
the minimum term of imprisonment and fine be awarded to
them. In support of their arguments for a lenient view in
the matter of sentence, reliance has also been placed upon
the judgement in case Emmanuel O. Agbaizu Vs. NCB 2003 (1)
JCC 322 and another judgement dated 01.02.2010 in Crl. A.
No. 120/2005 & 96/2005 of our own High Courts, wherein for
the quantities of heroin weighing 27 kg and 77 kg, the
minimum sentences of imprisonment of 10 years and fine of
Rs. 1 Lac were imposed.
5. I have thoughtfully considered the above
submissions being advanced on behalf of the State as well
as the convicts. Though the judgements in the above said
cases being referred to by Ld. Defence Counsels are not
applicable to the facts and circumstances of this case due
to the difference in facts, but yet keeping in view the
fact that all the three convicts are of very young age and
are still unmarried and are also having younger brothers
and sisters, besides their parents, in their families who
have to depend a lot upon the convicts, the court feels
bound to take a lenient view in the matter. No previous
involvement of any of the three convicts in a similar case
or in any other criminal case has also been reported or
alleged by the prosecution. They all are already in
custody in this case since the day of their apprehension
SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05
PS: K.M. Pur
4
itself, i.e. 29.09.2005, and a period of about 6 years is
already going to expire since then.
6. Hence, keeping in view the totality of the facts
and circumstances and while taking a lenient view in the
matter all the three convicts are being sentenced to
rigorous imprisonment for a period of 10 years each and are
also sentenced to pay a fine of Rs. 1,00,000/- (Rupees One
Lac) each. In case of non payment of the above fine, they
shall further undergo simple imprisonment for a period of 6
months each. The convicts are also being extended the
benefit of Section 428 Cr.P.C. for the periods of
imprisonment already undergone by them. Fine has not been
paid by the convicts. Let them undergo the above sentence
as per law.
7. Let a copy of the judgement and this order on
sentence be supplied to the convicts free of costs. The
case property be confiscated and disposed of as per law,
subject to the outcome of the appeal to be filed against
this judgement and order on sentence, if any. File be
consigned to record room.
Announced in the open
court on 20.08.2011 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05
PS: K.M. Pur
5
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus 1. Sadab
S/o Mohd. Rahis
R/o L-170, Sundar Nagari,
PS Nand Nagri, Delhi.
2. Azad
S/o Sh. Hamshar Ali
R/o Nasbandi Colony,
Budh Bazar, Loni-2,
PS Loni, U.P.
3. Mohd Rahis
S/o Sh. Ali Hussain
R/o Village Hasan Pur
PS Karnel Ganj,
District Gonda, U.P.
SC No. : 41A/05
FIR No. : 528/05
U/S : 20 NDPS Act
PS : K.M. Pur
Date of institution : 23.11.2005
Date of reserving judgment : 12.08.2011
Date of pronouncement : 19.08.2011
J U D G M E N T
The accused persons were sent to face trial by SHO PS Kotla Mubarak Pur on allegations that on 29.09.2005 at SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 6 about 04.40 pm at Bhisham Pitamah Road, Near Kotla Red Light, Opposite Defence Colony, New Delhi, within the jurisdiction of PS K.M. Pur, they all were apprehended when they were found to be in possession of and carrying 59 kg of ganja in car No. DL 5C 6276, in contravention of the provisions of Section 8(C) of the NDPS Act, which was an offence punishable U/S 20 of the NDPS Act.
2. The prosecution story, in brief, is that on the above said date and time SI Girijesh Singh, Ct. Satish Patil and Ct. Mahesh Bisht of PS K.M. Pur were on patrolling duty and were present near the red light of Kotla, opposite Defence Colony, when they had noticed a Maruti 800 car having registration No. DL 5C 6276 coming from the side of Jawaharlal Nehru Stadium and crossing the above red light at a fast speed. The window glasses of the car were open and it was signaled to stop, but the driver of the vehicle had speeded it up and it was observed by the police party that two other persons, besides the driver, were also inside the vehicle at that time and one of them was sitting on the front seat and the other on the back seat and one ' bora ' (gunny bag) was also noticed in the vehicle, which was lying by the side of the person sitting on the back seat.
3. It is alleged in the chargesheet that since the above car had stopped due to the traffic jam ahead on the SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 7 road, it was intercepted and forced to be parked by the side of the road and on enquiry it was found to be driven by the accused Sadab and the accused Azad was sitting on the front seat of the car and the third accused Mohd. Rahis was sitting on the back seat. The police party had also found one canvas zipped bag lying near the front seat of the car and the accused persons were asked about the contents of the above canvas and gunny bags and they had replied that the same were containing household articles. However, on insistence of the police officers, the accused were made to open the above canvas bag and it was found to contain some candle like paper ' pudiyas' (rolls) and on checking the same, the substance thereof appeared to be ganja from its smell and appearance. The contents of the above gunny bag kept on the back seat of the car were also checked and the same was also found to be containing ganja and then the police party had asked the accused persons to open the dickey of the vehicle and had also recovered one other gunny bag lying in the dickey and the same on opening was also found to be containing ganja and the contents of all the above bags were also confirmed to be ganja by the accused persons.
4. SI Girijesh Singh had then requested some passersby to join the proceedings, but none had agreed and then he had informed the accused persons that in view of the above recovery of ganja from them, they had to conduct their SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 8 search for further ganja and the accused persons were apprised about their legal right to be searched in the presence of a Magistrate or a Gazetted Officer and he had also served separate notices U/S 50 of the NDPS Act upon them in this regard, but the accused had refused for the same while saying that the ganja in their possession had already been recovered. SI Girijesh Singh had also intimated the local SHO regarding the recovery of above ganja and had further sent Ct. Satish Patil to the PS for bringing the weighing scale.
5. It is further alleged in the chargesheet that then SHO/Insp. Dhir Singh had also reached at the spot and he had also explained the rights of the accused and the contents of the notices U/S 50 of the NDPS Act to them, but the accused had sticked to their above stand. SI Girijesh had then weighed the above ganja and the weight of ganja kept in the canvas bag was found to be 10 kg and that kept in the gunny bags recovered from the back seat and dickey of the car was found to be 24 kg and 25 kg respectively, i.e. 59 kg of ganja in total in all the three bags. He had then taken out 250 gms of ganja as samples from each of the three bags and had kept the same in separate polythene pouches and had converted them into three separate cloth pullandas. The remaining ganja was also kept and sealed in the same bags and the sample pullandas were given markings as A, B & C respectively and the bags containing remaining ganja were SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 9 marked as D, E & F respectively and all the pullandas of the samples and the remaining ganja were sealed with the seals of GP. Form FSL was also filled up at the spot and the same seal was affixed thereon and all the pullandas and the FSL form were taken into possession vide a seizure memo prepared at the spot. The SHO/Insp. Dhir Singh had also affixed his seals of DSC on all the pullandas and the FSL form and had left the spot with the same as well as a copy of the seizure memo, which were subsequently deposited by him in the police malkhana. The seal after use was given to Ct. Mahesh and SI Girijesh Singh had prepared a rukka and had sent Ct. Satish Patil to the PS for registration of a case U/S 20 of the NDPS Act.
6. It is also a part of the chargesheet that further investigation of this case was assigned to SI Rajbir Singh, who had arrived at the spot and was handed over the custody of the accused as well as all the relevant documents. At the spot he had prepared a site plan at the instance of SI Girijesh Singh, seized the above car, arrested the accused persons, conducted their personal search and recorded their disclosure statements and had also recorded the statements of witnesses. It was disclosed by the accused persons that they used to procure ganja from Pawan Kumar, Mehboob, Mohd. Rafi and Mohd. Deba etc. of Andhra Pradesh telephonically and further used to supply the same in areas of Nizamuddin, New Friends Colony and Goving Puri etc., but they had not SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 10 disclosed the complete details of the above persons or their sources. It was also found during the investigation that the above vehicle / car belonged to one Mohd. Kamil and it was taken by the accused Sadab from him on some pretext and the owner of the car was not aware about the above supply of ganja in his car. SI Rajbir Singh had also subsequently sent the information U/S 57 of the NDPS Act to the area ACP and the exhibits of this case to FSL for examination and had prepared the chargesheet, pending the result of examination of the exhibits / samples.
7. A chargesheet for the commission of an offence punishable U/S 20 of the NDPS Act by the accused persons was filed in this court on 23.11.2005 and cognizance thereof was taken. A prima facie case for the above said offence was also found to be made out against the accused and a charge was accordingly framed against them on 24.04.2006. However, during the pendency of the trial, the charge was amended to be made it more specific for the concerned offence punishable U/S 20(b)(ii)(C) of the NDPS Act as the above quantity of ganja recovered from the accused persons was a ' commercial quantity' under the said Act.
8. The prosecution in support of its case has examined total 8 witnesses on record and their names and the purpose of examination etc. is being stated herein below :-
SC No. 41A/05 State Vs Sadab & Ors. FIR No. 528/05 PS: K.M. Pur 11 (i) PW1 ASI Roshan Lal is the SO to the ACP Defence
Colony and he has brought on record the original information U/S 57 of the NDPS Act received in their office as Ex. PW1/A and has also stated that same was received vide diary No. 7 and was seen and endorsed by the then ACP Sh. H.P.S. Cheema, whose signatures thereon he had identified. PW2 ASI K.S. Daniyal is the Duty Officer of the PS who had recorded the FIR Ex. PW2/A of this court.
(ii) PW3 Ct. Satish Patil, PW5 Ct. Mahesh Bisht and PW7/IO SI Girijesh Singh are all the members of the police team and the witnesses of recovery of the above contraband substance from the possession of the accused and they all have broadly deposed on the above lines of the prosecution story. During the statements of PW3 & PW5 the carbon copies of the notices U/S 50 of the NDPS Act given to the accused Mohd Rahis, Azad and Sadab have been exhibited as Ex. PW3/A, PW3/B & PW3/C respectively and their arrest memos, personal search memos and disclosure statements have also been Ex. PW3/H to PW3/J, PW3/K to PW3/M and PW3/P, PW3/O & PW3/N respectively. Further, the rukka, FIR, site plan and seizure memo have also been exhibited as Ex. PW3/D, PW3/E, PW3/F & PW3/G respectively. PW3 & PW7/IO have identified the entire ganja of the above three bags as Ex. P1 (colly), the two gunny bags as Ex. P2 & P3, the canvas bag as Ex. P4 and the remnants of all the three samples as Ex. P5 (colly).
SC No. 41A/05 State Vs Sadab & Ors. FIR No. 528/05 PS: K.M. Pur 12
PW5 has also identified the above exhibits P1 to P5 and also the original notices U/S 50 of the NDPS Act given to the accused and recovered in their personal search as Ex. PW5/P1, PW5/P3 & PW5/P2 respectively. (It appears that though the above exhibit numbers were put on these documents, but inadvertently the exhibit numbers PW5/P2 & PW5/P3 were not typed / mentioned in the statement of this witness). PW5 Ct. Mahesh, after he was recalled U/S 311 Cr.P.C. on an application moved by the prosecution, has also deposed about the taking of the three sample pullandas of this case to the FSL on 14.10.2005 vide RC No. 74/21/05. They all have also identified the accused persons.
(iii) PW4 HC Ravinder Kumar is the MHC(M) of the PS at the relevant time and he has proved on record a copy of the relevant entry No. 1065 of his Register No. 19 Ex. PW4/A regarding the deposit of the above sealed pullandas and FSL Form etc. as well as the personal search effects of the accused persons in the PS and also the movement of the sample pullanda. He has also stated that the three sample pullanda were taken to FSL on 14.10.2005 by Ct. Mahesh vide RC No. 74/21 and receipt of the FSL result on 27.12.2005 through Ct. Devlagan. He has further stated that the above articles were not tempered with while the same were in his custody in the malkhana.
(iv) PW6 SI Rajbir Singh is the second IO of this case SC No. 41A/05 State Vs Sadab & Ors. FIR No. 528/05 PS: K.M. Pur 13
and he has deposed, on the above lines of the prosecution story, regarding the arrest, personal search and disclosures etc. of the accused vide the above documents, preparation of site plan, the sending of information U/S 57 of the NDPS Act and the sample pullandas to the FSL. He has also deposed that though he had tried to trace out the sources from where the accused used to get and to whom they used to supply the contraband substance, but he was not successful. He has also proved on record a seizure memo of the RC of the above vehicle as Ex. PW6/A and has identified the original RC as Ex. PW6/B.
(v) PW8 Retd. ACP Dhir Singh Chaudhary (wrongly typed as Veer Singh Chaudhary), is the then SHO of PS K.M. Pur and he has also deposed on the above lines of the prosecution story regarding his arrival at the spot and participation in the proceedings conducted there. He has specifically deposed about being entrusted with the above 6 pullandas, FSL form and copy of the seizure memo and deposit thereof in the malkhana. He has also identified the above Ex. P1 to P5.
9. Besides the above, The two FSL reports regarding the chemical and biological examination of the samples of this case have also been tendered on record by the Ld. Additional PP for the State as Ex. P1 & P2.
SC No. 41A/05 State Vs Sadab & Ors. FIR No. 528/05 PS: K.M. Pur 14
10. After the conclusion of the prosecution evidence all the incriminating evidence brought on record was put to the accused persons and they had denied the same to be incorrect. All of them have claimed themselves to be innocent and to have been falsely implicated in this case after being picked up from their respective houses. They have specifically denied the recovery of any ganja from their possession or from the possession of their co-accused in their presence or from the above said vehicle. However, only the accused Sadab has chosen to lead evidence in his defence and the remaining two accused have not led on record any defence evidence.
11. The accused Sadab in his defence has only examined his brother Sh. Shavesh as DW1 and he has stated that on 29.09.2005 he was present at his house when at about 11.30 am / 12.00 noon two persons had knocked their door and had taken away his brother Sadab. On enquiry by this witness they had told to him that the accused was being taken to PS Kotla Mubarak Pur, but he was not permitted to accompany the accused. Subsequently, he also claims to had visited the above PS, but could not find any trace of his brother till he was found to be implicated in this case.
12. I have heard the arguments advanced by Sh. Wasi Ur Rehman, Ld Additional PP for the State and Sh. S.S. Dass, Ld. Defence Counsel for the accused Sadab and Sh. M. Nabi, SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 15 Ld. Defence Counsel representing the other two accused persons. I have also appreciated the evidence led on record and the other record of the case.
13. It has been argued by Ld. Additional PP for the State that a very huge quantity of ganja weighing 59 kg has been recovered from the accused persons and the oral evidence led by the prosecution on record in this regard is duly corroborated by the documentary evidence brought on record and the depositions of all the recovery witnesses are consistent and corroborative in nature and hence the evidence led on record is sufficient to prove the guilt of the accused persons for the offence U/S 20(b)(ii)(C) of the NDPS Act. He has also argued that since it is a case of chance recovery, no notice U/S 50 of the NDPS Act was required to be served upon the accused persons and the depositions made only by the police witnesses are sufficient to bring home the guilt of the accused.
14. On the other hand, Ld. Defence Counsels have challenged the prosecution story on various legal grounds as well as the factual contradictions, inconsistencies and discrepancies etc. therein and have argued for the acquittal of the accused persons.
15. The first legal challenge to the prosecution case is on the ground that the contraband substance recovered SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 16 from the accused persons cannot be termed to be ' ganja ' within the meaning of law and it has been pointed out that when the case property was produced for identification before PW3 Ct. Satish Patil, PW5 Ct. Mahesh and the IO/PW7 SI Girijesh, none of them has specifically stated that the remnants of the samples or the remaining ganja being identified by them as such contained any flowering or fruiting tops of the cannabis plant and it is only found recorded that the remnants and the remaining case property produced in the court only consisted of some leaves, chura of leaves and seeds etc. They have also argued that PW3 Ct. Satish Patil had even no knowledge or identification of the ganja prior to the above recovery of this case and he has also stated that this witness was even not aware as to which part of a tree is called ganja. It has also been pointed out that even PW5 was not aware if any flower, seeds, stem or branches etc. were also there in the substance recovered from the accused persons and further the IO/PW7 has also not specifically stated that any flowering or fruiting top of the above plant is required to be present to make any substance to be ganja as he has only stated that ganja is prepared from the leaves of the plant and alongwith the leaves, some branches, some part of the stem and some seeds were also there in the above recovered substance.
16. PW3, PW5 and the IO/PW7 are all the ordinary SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 17 police officials and they are not experts in identification of any narcotic drug or substance. They all have clearly stated that the substance recovered from the accused persons from its smell etc. was identified to be ganja and on enquiry from the accused persons also the same was confirmed to be ganja. It is sufficient if any such substance is seized by the police while suspecting it to be a narcotic drug or psychotropic substance because it is always for the FSL authorities to confirm the above fact. Hence, the depositions made by these witnesses and the description of the substance recorded during their depositions cannot be given much weight.
17. " Section 2(iii) of the NDPS Act defines the term ' c annabis (hemp) ' in the following words :-
' cannabis (hemp) ' means :-
(a) charas, that is, the separated resin, in whatever form whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as Hashish oil or liquid Hashish:
(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever, name they may be known or designated; and
(c) any mixture, with or without any neutral material, of any of the above forms SC No. 41A/05 State Vs Sadab & Ors.FIR No. 528/05
PS: K.M. Pur 18 of cannabis or any drink prepared therefrom. "
18. It is clear from the above that the presence of flowering or fruiting tops of the cannabis plant is required before any such substance can be termed as ' ganja ' within the meaning of the above said provision and if the substance consists only of seeds and leaves, when not accompanied by the tops, then the same cannot be said to be ganja. However, if the presence of flowering or fruiting tops of the cannabis plant is there, then the quantity or ratio of the flowering or fruiting tops of the above plant becomes immaterial and the whole of the substance, including the seeds and leaves etc., is to be considered as ganja within the meaning of the above provision.
19. In the report Ex. P1 of the Chemistry Division of the FSL, Rohini, which is per-se admissible in evidence U/S 293 Cr.P.C., the above samples were identified to be the female flowering portion of Indian Hemp Plant (ganja) and in the other report Ex. P2 of the Biology Section, which too is admissible in evidence as such under the above said provision, the above samples were also found to contain Tetrahydrocannabinol, which is the main constituent of cannabis plant. Therefore, in view of the above reports, the above contraband substance recovered from the accused SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 19 persons, out of which the above samples tested vide reports Ex. P1 & P2 were drawn, can be termed to be ganja within the meaning of the NDPS Act.
20. The next contention of Ld. Defence Counsels is that no notice U/S 50 of the NDPS Act was given to the accused persons by the IO/PW7 before checking the contents of the above bags and before taking the search of the above said vehicle and hence the accused persons are liable to be acquitted for non compliance of the mandatory provisions of Section 50 of the NDPS Act. In this regard, it is observed that since it was not a case of prior information regarding the presence of any contraband substance in the above said vehicle or with the accused persons and the recovery of the above said ganja was effected from the accused persons only by chance, the provisions of Section 50 of the NDPS Act are not found to be applicable in the instant case. Reference in this regard can be made to some of the judgements in cases of State of Punjab Vs. Balbir Singh-1994 Crl. L.J. 3702, State of Punjab Vs. Baldev Singh (1999) 6 SCC 172 and Thandi Ram Vs. State of Haryana 2000 (1) SCC 318. Even otherwise, since the recovery of the above ganja was effected from the above said bags being transported in the above said vehicle and not from the ' persons ' of the accused, the provisions of Section 50 of the NDPS Act were not required to be complied with. Reference in this regard SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 20 can also be made to the cases of Baldev Singh-Supra, State of H.P. Vs. Pawan Kumar - 2 005 (4) SCC 350, Madan Lal Vs State of H.P.-2003 Crl.L.J 3868 and Ajmer Singh Vs State of Haryana - 2 010 (2) SCR 785 (Crl. Appeal No. 436/09).
21. It has also been argued by Ld. Defence Counsels that no public witness has been joined by the police officials at any stage of the investigation and due to the non joining of the same the prosecution story should not be believed and the accused are entitled to be acquitted giving benefit of doubt. Since it was a case of chance recovery, as discussed above, there was no question of joining of any public witness by the police officials prior to the apprehension of the accused persons with the above contraband substance and the joining of any such public person subsequently merely to witness the writing work could not have served any purpose. Moreover, all the above witnesses of recovery have specifically deposed that at the time of recovery of the above contraband substance from the above vehicle, the IO/PW7 had specifically requested some passersby to join the proceedings but none of them had agreed. It is a matter of common knowledge that public persons always avoid to witness the police investigations due to the long drawn proceedings in the Indian Courts and also the harassment which they have to face in attending the court proceedings. Moreover, the depositions of police SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 21 witnesses cannot be discarded merely on the ground of their being official witnesses as the presumption of honesty is very much available to a police official as the same is available to any other official witness.
22. Though the Ld. Defence Counsel for accused Sadab has relied upon some judgements in cases Gaunter Edwin Kirchar Vs. State of Goa IV 1993 (1) Crimes 1183, Ritesh Chakravarty Vs. State of M.P. 2006 (3) JCC (Narcotics) 150, Bahadur Singh Vs. State of M.P. 2002 (1) JCC 12, Jagdish Vs. State of M.P. 2002 (1) JCC 54 in support of his arguments advanced on the above aspects, but it is observed that none of the above judgements is applicable to the facts and circumstances of the present case as there is no similarity between the facts of this case and of the above said cases. In the case of Gaunter Edwin Kirchar-Supra, two small pieces of charas weighing 7 gms and 5 gms were recovered from the accused and only one piece of 5 gms was sent to FSL for testing and in that case the main consideration before their Lordships was whether the second piece of charas weighing 7 gms can also been held to be charas in the absence of any testing thereof and whether the accused should be given the benefit of Section 27 of the NDPS Act for possessing a small quantity of the above substance for his personal consumption. It was held in the facts and circumstances of the above case that the accused SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 22 was entitled to the said benefit and his conviction U/S 20(b)(ii) of the NDPS Act was altered to that U/S 27 of the said Act. In case of Ritesh Chakravarty-Supra recovery of 1.3 kg of opium was effected on the basis of a secret information and the compliance of the provisions of Section 42 of the NDPS Act was under consideration. Two public witnesses joined at the time of recovery had also turned hostile and the other official witnesses were also withheld from examination and the case of the prosecution solely rested on the testimony of the IO, which was disbelieved under the above circumstances and the accused was acquitted giving benefit of doubt.
23. Similarly, in case of Bahadur Singh-Supra also two witnesses were joined at the time of recovery and one of them had turned hostile and the other was not examined. There was only the sole testimony of the IO for consideration, which keeping in view the serious discrepancies in the recovery, seizure and deposit etc. of the case property, especially the fact that the entry in the malkhana register was made after the 15th day, was considered not sufficient for conviction of the accused and the accused was acquitted giving benefit of doubt. In case of Jagdish-Supra also the prosecution story was disbelieved and the accused was acquitted giving benefit of doubt only because the apprehension of the accused and recovery of the SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 23 contraband substance from his attaché was found to be doubtful as without any prior information, the IO had only brought down one passenger, i.e. the accused, from a bus and there was found to be no justification for the same and further the two panch witnesses had turned hostile and even the conductor and driver of the bus had not supported the prosecution version.
24. The next challenge to the prosecution story has been made by the Ld. Defence Counsels on the ground that the provisions of Section 55 of the NDPS Act have not been complied with as there is no documentary evidence on record to prove that the case property was handed over to the SHO or he had taken charge of the same. On appreciation of the evidence led by the prosecution on record, it is observed that there is no merit in this contention of the Ld. Defence Counsels because there are consistent and corroborative depositions made by PW3, PW5, PW7/IO as well as PW8/SHO that the sealed pullandas of the samples and remaining ganja were handed over by the IO/PW7 to the SHO/PW8 at the spot itself and the same were taken by him to the PS. It has also been deposed by the SHO/PW8 as well as the MHC(M)/PW4 that the above said pullandas were handed over by the SHO/PW8 to the MHC(M)/PW4 and were deposited in the police malkhana vide entry at Srl. No. 1065 of the Register No. 19, which has been proved on record as Ex.
PW4/A. The name of the SHO/PW8 Inspector Dhir Singh is SC No. 41A/05 State Vs Sadab & Ors. FIR No. 528/05 PS: K.M. Pur 24
also written in the concerned column of the above said entry as depositor of the case property and merely because the above entry has not been signed by the SHO/PW8, as argued by Ld. Defence Counsels, no inference regarding the non compliance of the provisions of Section 55 of the NDPS Act can be drawn therefrom. Hence, the above argument of Ld. Defence Counsels is not of any help to the case of the accused persons as the compliance of provisions of the above said section stands duly proved on record by the oral depositions made by the above witnesses, which are further corroborated by the contents of Ex. PW4/A, which is the relevant entry of the Register No. 19 regarding the deposit and movement etc. of the case property of this case. Though the Ld. Defence Counsel for accused Sadab has relied upon judgements in cases NCB Vs. Praveen Verma, Crl. M.A. No. 576/2001 and Thandi Ram-Supra in this regard, but the same are not found to be applicable to the facts and circumstances of this case on the said aspect.
25. The next argument of Ld. Defence Counsels is that neither any investigation has been conducted by the IOs of this case regarding the circumstances as to how the accused persons had come to possess the above said car used in the commission of alleged offences of this case nor they had examined the registered owner of the above said car as he was not even cited as a witness in this case by the IO and hence there is no sufficient evidence on record to link the SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 25 accused persons with the recovery of the above contraband substance allegedly effected from the said car.
26. It has already come on record during the depositions of PW5 Ct. Mahesh and PW7/IO SI Girijesh Singh that on enquiry from the accused Sadab the above vehicle / car bearing registration No. DL 5C 6276 was found to be belonging to and owned by one Mohd. Kamil and even the original RC of the above said car in the name of one Kamil was recovered in the search of the vehicle conducted at the spot by the second IO/PW6 SI Rajbir Singh and has been brought on record as Ex. PW6/B. A seizure memo thereof is also proved on record by him as Ex. PW6/A, alongwith the seizure of the above car and its key etc.. Even the above car was produced in this court for identification before PW6 SI Rajbir Singh and was identified by him as Ex. P6 and the same is still lying deposited in the police malkhana as it is also a matter of record that one application seeking the release of the above vehicle on superdari was moved by the above Mohd. Kamil, but the same was dismissed vide order dated 05.10.2005 of this court and the said order has not been challenged further as per record. Hence, the involvement, seizure and identification of the above car stands duly proved on record and simply because the registered owner thereof has not been made a witness in this case, the case of the prosecution does not suffer as the presence of the accused persons in the above said SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 26 vehicle and while transporting the above contraband substance stands duly proved on record by the oral depositions of PW3, PW5 and PW7/IO, which are further corroborated by the documents like rukka Ex. PW3/D, FIR Ex. PW3/E and seizure memos Ex. PW3/G and PW6/A etc. The judgements in cases State of Punjab Vs. Balkar Singh & Anr. 2004 (3) SCC 582 and Eze Val Okeke @ Val Eze Vs. NCB 2005 (1) CC Cases (HC) 72, but it is observed that the same have been given in a different contest and are not applicable to the present case.
27. The next argument which has been vehemently advanced by the Ld. Defence Counsels is that the prosecution has failed to prove on record the complete chain of circumstances pertaining to the safe deposit of the case property in the police malkhana and till the examination of the samples in the FSL, Rohini and the production of the case property in this court and hence tempering with the case property cannot be ruled out. It has also been pointed out that there was considerable reduction in the weight of the remaining case property observed by the court when the same was produced in this court on 18.08.2010 and the weight of the above three bags, alongwith the bags, was found to be 8.250 kg, 20.400 kg & 21.700 kg instead of there original weights of 10 kg, 24 kg & 25 kg and thus the total weight of the above three bags SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 27 was found to be 50.350 kg only on the above said date as against their original gross weight of 59 kg. It has also been pointed out that when the above said case property was produced in this court on 18.08.2010, it was also found that the above bags containing the contraband substance were having big holes, which were stated to had been caused by rats ' eating, and it was also possibile to even put a hand inside the bags and the substance contained in the bags could have been easily taken out or put inside through the said holes, as is reflected in the proceedings of the said date, and thus there was every possibility that the case property was tempered with while it was in the custody of the police malkhana. To strengthen the above argument it has also been pointed out that when the case property was produced in this court for the first time for identification during the examination of PW3 Ct. Satish Patil, it was observed that either the initials of the seals affixed on the pullandas containing the remaining ganja were not legible or the seals were found to be broken and the court can safely draw an inference therefrom that the same was tempered with in the PS.
28. When the evidence led on record is appreciated in the light of the above arguments advanced by Ld. Defence Counsels, it is observed that neither any such tempering with the pullandas of the case property or of the samples is made out from the record nor any such inference is SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 28 liable to be drawn therefrom. It is found that there are specific depositions made by PW3, PW5 as well as the IO/PW7 regarding the sealing of the pullandas of the samples as well as of the remaining case property at the spot itself and the entrustment thereof by the IO/PW7 to the SHO/PW8 for deposit thereof in the police malkhana. As has also been discussed above, the factum of deposit of the said pullandas, which were also sealed by the SHO/PW8 at the spot itself, in the police malkhana has also been duly proved on record from the depositions made by the SHO/PW8 as well as the MHC(M)/PW4, which in turn are further corroborated by the contents of the relevant entry Ex. PW4/A of the Register No. 19 of the malkhana. The sealed sample pullandas of this case were sent to FSL, Rohini for examination on 14.10.2005 by the MHC(M)/PW4 through PW5 Ct. Mahesh vide RC No. 74/21 and PW4/MHC(M) has made specific depositions in this regard and this fact is also corroborated by the contents of Ex. PW4/A, which also contains an endorsement regarding the taking over of the sample pullandas by PW5 from the police malkhana, on the above said date, for their deposit in FSL, Rohini. The FSL report tendered on record as Ex. P2, which is per-se admissible in evidence, also contains a specific mention of the receipt of the above three sample pullandas of this case in FSL in sealed condition and the seal were also found to be tallying with the specimen seal impressions forwarded alongwith the forwarding letter (FSL form).
SC No. 41A/05 State Vs Sadab & Ors. FIR No. 528/05 PS: K.M. Pur 29 Hence, from the above evidence the possibility of any
tempering with the sample pullandas till their examination in the FSL stands ruled out.
29. It is also observed that the pullandas of the remaining case property were produced in the court for the first time on 11.05.2007 during the examination of PW3 Ct. Satish Patil, as has also been pointed out by Ld. Defence Counsels. It was then observed that on one thaila (canvas bag) the seals were not legible and some seals were also found to be broken and similarly the seals affixed on the other two gunny bags were also found to be illegible and some seals were also found to be broken. However, the impressions of the seals of FSL, Rohini affixed on the pullandas containing the remnants of the samples were found to be duly legible and in good condition. In the considered opinion of this court simply because the seals affixed on the pullandas of the remaining case property, i.e. the pullandas of the above canvas bag and gunny bags, were found to be not legible or some of these seals were found to be broken, no inference of tempering with the same in the custody of the police malkhana can also be drawn therefrom as though the impressions of the seals were not found legible and some of the seals were also found broken, but there is nothing on record to infere that the above pullandas were actually found to be tempered with. The above holes which were observed in the above bags while the SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 30 same were produced in this court subsequently, were only observed on 18.08.2010, i.e. after the lapse of more than three years since the production of the above pullandas in this court for the first time, and hence the same cannot be given much weight or relevance as there was a justification furnished by the then MHC(M) producing the case property in the court at that time that the same were eaten by rats. The court can take judicial notice of the poor conditions of the police malkhanas of this country and specifically of the capital State of Delhi, which either due to the lack of storage space or being over burdened are always found lacking to some extent in effectively preserving and handling the case properties. Reference in this regard can be made to the case of Jodha Sahani Vs. The State of NCB of Delhi 2010 (4) JCC (Narcotics) 229. It has also been specifically deposed by PW4/MHC(M) that till the articles had remained in his custody the same were intact and hence merely because the above bags were subsequently found some holes, when the same were produced in this court subsequent to the formal amendment of the charge so as to make it for an offence punishable U/S 20(b)(ii)(C) instead of Section 20 of the NDPS Act, it cannot be inferred therefrom that the case property was tempered with in the police malkhana. Therefore, this argument of Ld. Defence Counsels is also not being found having any substance therein and the reliance in this regard on the judgement in case of NCB Vs. SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 31 Praveen Verma-Supra is also being wrongly placed.
30. In continuity with the above argument, it has also been argued by Ld. Defence Counsels that the evidence led by the prosecution on record regarding the filling up of FSL form, its deposit in the malkhana and sending of the same to the FSL, alongwith the sample pullandas, is also not found to be convincing enough as the factum of deposit of the above said form or sending thereof to the FSL is not found specifically recorded in the entry Ex. PW4/A of the Register No. 19. They have also referred to some depositions made by some prosecution witnesses with regard to the filling up of and the description of the FSL form and have argued that from their depositions it is highly doubtful that any such form was actually filled up at the spot or sent alongwith the samples. Reliance in this regard has also been placed by Ld. Defence Counsel for accused Sadab on judgement in case Moolchand Vs. State 1993 JCC 234.
31. In this regard, it has been observed that though PW3 has not been able to tell the description of the FSL form, but the IO/PW7, who had filled up the said form, as well as the SHO/PW8, who was entrusted with the said form by the IO/PW7 alongwith the samples, have both specifically deposed about the description of the FSL form that the same SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 32 was in the form of a proforma printed on both sides of the page and no discrepancies are found to be there in their above depositions. Even the above FSL report Ex. P2 specifically mentions the receipt of the FSL form (forwarding letter) alongwith sample pullandas. Hence, simply because the factum of deposit thereof in the police malkhana or the sending of the same to FSL with the sample pullandas was not specifically mentioned in the entry Ex. PW4/A, it cannot be inferred that the above form was not filled up, deposited or sent to FSL as there are specific depositions of PW3, PW5 & PW7/IO regarding filling up of the same at the spot and also the depositions of PW8/SHO regarding the entrustment of the same to him at the spot and deposit thereof in the malkhana, which are also corroborated by the depositions of the then MHC(M)/PW4. The judgement in case of Bilal Ahmad Vs. State 2011 III AD (Crl.) (DHC) 293 being relied upon by the Ld. Additional PP for the State can be seen in this regard and in view of this judgement the prepositions of law has laid down in the case of Moolchand-Supra are not of any help to the accused persons. Though the Ld. Defence Counsels have also argued that even the factum of deposit of the case property in the police malkhana is not specifically recorded in the entry Ex. PW4/A as it is only a reproduction of the contents of the seizure memo, but it is observed that the same is only due to the age old practice being carried out by the police SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 33 officials with regard to the manner of entering the case property in the malkhana.
32. The next argument of the Ld. Defence Counsels is that the particulars of the case like FIR number and Sections etc. are found written on the documents like the seizure memo Ex. PW3/G, seizure memo Ex. PW6/A and carbon copies of the notices U/S 50 of the NDPS Act Ex. PW3/A, PW3/B & PW3/C and there is no explanation on record as to how the same are appearing on these documents though these documents were prepared prior to the registration of the case. Reference in this regard has also been made to the judgments in cases Kalu Ram Vs. State 2000 I AD (Delhi) 792, Giriraj Vs. State 2000 I AD (Delhi) 893, Ramji Singh Vs. State 2000 I AD (Delhi) 1000, Zofar Vs. State 2000 II AD (Delhi) 137, Ramesh Prakash Vs. State 1992 (2) JCC (Delhi) 538 and Mohd. Hashim Vs. State 1999 VI AD (Delhi)
569. However, it is observed that the above discrepancy being pointed out by Ld. Defence Counsels is not found to be fatal as a bare perusal of the carbon copies of the notices Ex. PW3/A to PW3/C is sufficient to show that the particulars of this case as well as the replies of the accused thereon, with their signatures, are found to be written subsequently and similarly the seizure memo Ex. PW6/A of the car, alongwith its key and RC, was also prepared subsequently by the second IO/PW6 SI Rajbir Singh.
SC No. 41A/05 State Vs Sadab & Ors. FIR No. 528/05 PS: K.M. Pur 34 Even the first IO/PW7 SI Girijesh Singh has stated on
record that the particulars of the case on the seizure memo of the contraband substance Ex. PW3/G were written subsequently by the second IO. As far as the depositions of the second IO/PW6 to the effect that he had not made any addition or alteration etc. in the documents handed over to him are concerned, as are being pointed out by Ld. Defence Counsels, it is found that the same are not fatal as the Ld. Defence Counsels have not specifically questioned PW6, PW3 or PW5 regarding the writing of the FIR number and Section etc. on the said documents and the questions in this regard have been asked only in the disguised form. The Ld. Additional PP for the State in this regard has rightly relied upon a subsequent judgment of our own High Court in case of Bilal Ahmad-Supra wherein it was held that in case the above discrepancy is explained, it does not vitiate the trial if these particulars are found to be added subsequently.
33. It is also argued by Ld. Defence Counsels that there is a delay of about 15 days in sending of the samples to FSL as the sample pullandas were prepared on the date of incident itself, i.e. 29.09.2005, whereas the same were sent to FSL for examination only on 14.10.2005. In this regard also the prepositions of law as laid down by their Lordships in the case of Bilal Ahmad-Supra can be referred to wherein a delay of about 59 days in sending of the SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 35 samples to the CFSL was considered to be not fatal as no tempering with the sample pullandas was found to be there and there was no challenge to the CFSL report, which being per-se admissible in evidence U/S 293 Cr.P.C. was tendered on record, as is also in the present case.
34. Besides the above arguments, some other discrepancies and lacunae which have been pointed out by Ld. Defence Counsels are also being dealt herewith. It has been argued that there are some discrepancies in the statements of the recovery witnesses with regard to the nature of the scale used in weighing the contraband substance as some of them has stated the same to be a digital scale and the others to be a manual spring scale on which the articles are weighed by hanging. It is found that there are no discrepancies in the statements in this regard and none of the recovery witnesses has stated that a digital or electronic scale was used in weighing the contraband substance and the depositions of all of them suggest that it was a manual spring scale on which the contraband substance was weighed by hanging of the bags. It has also been argued that the net weight of the contraband substance was not taken by the IO/PW7 and the same was weighed alongwith the bags, but even this argument cannot be given much weight as the weight of the empty bags can always be considered and reduced by the court in appreciating the evidence led against the accused persons SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 36 for the charge framed against them.
35. It has also been argued that there was a CNG cylinder fitted in the dickey of the above car and hence it was impossible for the accused persons to carry or conceal one gunny bag containing contraband substance of about 25 kg in the dickey of the said vehicle and in this regard some observations taken on record during the examination of PW3 dated 23.05.2007 have also been referred to. None of the prosecution witnesses has stated on record that at the time of interception of the above vehicle any CNG cylinder was found fitted in the dickey of the vehicle and the observations taken on record of this court on 23.05.2007 also only suggest that the above vehicle was having a CNG Gas Kit fitting and it can nowhere be inferred therefrom that any CNG cylinder was actually fitted in the vehicle at the relevant time of recovery of the above contraband substance from the dickey of the said vehicle. The accused persons had also not examined the registered owner of the said vehicle in their defence to substantiate the above fact nor there is anything on record to infer that the alleged cylinder was subsequently removed from the vehicle or that the dickey of the vehicle could not have accommodated the above gunny bag weighing about 25 kg. Though it has also been argued then there was no occasion for the above police officials to had stopped the above said vehicle as they were not posted in the traffic wing of SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 37 the police, but the argument is absurd on the face of it as being policemen it was their duty to act for the maintenance of law and order and hence they were duty bound to stop and intercept the said vehicle when they had noticed the same crossing a red light signal.
36. Though some other discrepancies and inconsistencies in the statements of the prosecution witnesses have also been pointed out by Ld. Defence Counsels, but the same are found to be immaterial and minor in nature and are likely to creep in a case in the natural way with the passage of time and with the fading memory of the witnesses. Further, though the accused Sadab has also examined his brother Sh. Shavesh in his defence as DW1 and he has deposed that the above accused was lifted away from his house in the noon time of 29.09.2005, but the evidence of this witness does not inspire any confidence for the simple reason that he has deposed about the same in this court only for the first time after the lapse of about 5 years since the above date and had also not previously agitated or complained about the same before or to any authority or forum. It cannot be ignored that a very heavy recovery of a contraband substance has been effected in this case and the vague pleas being raised about the false implication of the accused persons after their being picked up from their respective houses cannot be accepted unless there is very convincing and strong evidence to SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 38 substantiate the same and to confront or challenge the consistent and corroborative evidence led on record by the prosecution regarding the guilt of the accused persons, which is found to be absent in the instant case. It also cannot be ignored that no previous enmity between any of the accused persons or any member of the raiding team has either been pleaded or argued on behalf of the accused persons. Though the Ld. Defence Counsel for accused Sadab has also relied upon some other judgements, but the same are not even found to be worthy of discussion.
37. In view of the above discussion, it is held that the prosecution has successfully established the recovery of 59 kg of ganja from the accused persons, which was being possessed and transported by them in the above said car No. DL 5C 6276. In the Table notified under the NDPS Act a quantity of 20 kg of ganja has been prescribed to be a ' commercial quantity ' . Hence, even if the weight of the empty bags, i.e. two gunny bags and one canvas bag, which may be around 2 ½ / 3 kg, is reduced from the above quantity of 59 kg, the quantity of the above contraband substance recovered from the accused persons is very high and it is almost around three times of the ' commercial quantity ' of the said substance prescribed under the said Act. Therefore, the charge for the offence U/S 20(b)(ii) (C) framed against the accused persons stands duly substantiated and proved and all the three accused persons SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05PS: K.M. Pur 39 are held guilty and convicted for the above said offence. Let they be now heard on the quantum of sentence.
Announced in the open
court on 19.08.2011 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 41A/05 State Vs Sadab & Ors.
FIR No. 528/05
PS: K.M. Pur