Delhi District Court
In Narcotics Control Bureau vs . Sukh Dev Raj Sodhi, 2011 (6) on 22 October, 2011
IN THE COURT OF SH. NARINDER KUMAR
SPECIAL JUDGE, N.D.P.S. (CENTRAL): DELHI
S. C. No. 95/2008
FIR No. 94/2008
PS Narcotics Branch
U/s 21, 29 of NDPS Act
In the matter of :
State
Versus
1. Mukesh Sharma,
S/o Sh. Radhey Shyam Sharma,
R/o Village Bani, Thana Pagaria District,
Jhalwar Rajasthan.
2. Parveen Kumar Rajguru,
Sh. Ramesh Chand Rajguru,
R/o V.P.O Shyam Garh, District,
Mandsaur, M. P.
.....Accused persons
Date of institution : 12.12.2008
Date of Judgment : 22.10.2011
J U D G M E N T
Accused Mukesh Sharma has been facing trial for an offence under Section 21 of Narcotics Drugs & Psychotropic Substances Act, 1985 (herein FIR No. 94/08 1 after referred to as Act of 1985). Accusation levelled against accused Mukesh is that on 03.09.2008 at about 7.15 am, he was found in possession of 1.5 grams of gray brown colour powder detected to be heroin containing Diacetylmorphoine and Alprazolam 7.3% and 31.7% respectively in one packet and 500 grams of similar powder detected to be heroin containing 6.3% Diacetylmorphoine and 10.2% Alprazolam in front of Delite Cinema, Asaf Ali Road, Delhi within the jurisdiction of Police station Narcotics Branch.
Parveen Kumar Rajguru, coaccused has been facing trial for an offence under Section 29 of the Act on the accusation that on the aforesaid date, time and place, he abetted Mukesh Kumar, accused for possession of the above substances.
2. It is case of the prosecution that on 03.09.2008, at about 5.15 am, a secret informer came to PS Narcotics Branch and informed SI Sunil Jain that one person namely Praveen, resident of Manesar, in association with one Mukesh of Jhalawar (Rajasthan) involved in supply of heroin, were expected to come in front of Delite Cinema, Asaf Ali Road between 7 am to 7.30 am for supplying of heroin to someone.
On receipt of this information, SI Sunil Jain verified the same and produced the secret informer before Inspector M. L. Sharma. In turn, Inspector also satisfied himself and telephonically passed over the information to ACP M. S. Dabas, who issued directions to do the needful. Then Inspector M. L. Sharma directed SI Sunil Jain to conduct a raid.
The Sub Inspector reduced into writing the secret information in DD No. FIR No. 94/08 2 4 A and forwarded its copy to the SHO.
Further, it is the case of the prosecution that SI Sunil Jain constituted a raiding party consisting of himself, Constables Om Praksh, Harinder and Sohan Pal, and informed them about the secret information. The raiding party then reached the disclosed place i.e. in front of Delite Cinema, Asaf Ali Road, Delh. Efforts were made to join persons from the public, but none came forward.
At about 6.45 am, SI Sunil Jain and HC Om Prakash accompanied by the informer took position in front of Delite Cinema whereas the two constables took positions on the opposite side of the road. At about 7.05 am Mukesh Sharma accused was seen coming from the side of Ram Lila ground accompanied by Parveen coaccused . The secret informer identified them and then left the spot after pointing out both the accused. Both of them started waiting for someone. After sometime, Parveen accused handed over to Mukesh accused a colourful bag. After having waited for some minutes, both of them started moving towards Ram Lila ground. At that time, SI Sunil Jain apprehended them.
As per prosecution version, SI Sunil Jain introduced the members of police party to both the accused and that he had secret information against them and further that their search was required to be conducted. SI Sunil Jain is alleged to have informed the accused persons of their right under Section 50 of the Act, by way of notice. Both the accused gave reply in writing, so as not to avail of their right of search before gazetted officer or Magistrate.
It is case of the prosecution that search of the bag carried by accused FIR No. 94/08 3 Mukesh led to recovery of two polythene bags kept under a white towel . Polythene packets contained matiala coloured powdery substance and their openings were tied with rubber bands. Contents of both the packets was tested using the field testing kit and it was found to be heroin.
Large packet was given mark A and small packet was given mark B. Both the packets were weighed separately. Total weight of heroin in the large packet mark A was 1.5 kg whereas the total weight of heroin in small polythene packet mark B was 500 gm.
2 samples of 5 grams each were drawn from each packet. Samples drawn from the packet mark A were given mark A1 and A2. Samples drawn from the packet mark B were given mark B1 and B2.
The remaining heroin in the respective packets was kept as it is and converted into separate parcels which were given mark A and mark B. Towel was kept in the same bag, turned into parcel, sealed and given mark C. SI Sunil Jain filled in FSL form and affixed his seal bearing impression "5B PS NB DELHI" on all the parcels and also on form FSL. The seal after use came to be delivered to Constable Om Prakash. The case property was seized vide a recovery memo.
No other contraband was recovered from possession of Parveen Kumar accused.
Further it is case of the prosecution that on the basis of rukka sent from the spot case was got registered against the accused persons. The case property alongwith form FSL and carbon copy of seizure memo were sent to the SHO. FIR No. 94/08 4 The SHO affixed his seal on the parcels and form FSL, and also mentioned number of the FIR thereon. The case property came to be entrusted by the SHO to MHC(M). Further investigation of the case was assigned to SI Satyawan.
On reaching the spot, SI Satyawan took over memos and custody of both the accused persons, prepared rough site plan, arrested the accused persons and conducted their personal search. On completion of investigation at the spot, both the accused persons were brought to police station and produced before the SHO. The articles recovered on personal search of the accused persons were deposited with MHC(M). Other case property also came to be deposited with the MHC(M).
Special report under Section 57 of the Act was prepared which came to to be forwarded to the ACP. Similar report prepared by SI Sunil Jain was also forwarded to the ACP.
The sealed samples and the FSL form were sent to FSL for analysis. On completion of investigation challan was put in Court.
Copies of documents relied upon by the prosecution were supplied to the accused free of cost.
Charge
3. As noticed above, charge for an offence under Section 21 of the Act was framed against accused Mukesh Sharma, whereas charge for an offence under Section 29 of the Act was framed against accused Parveen Kumar Rajguru on 21.09.2009. Since both of them pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
FIR No. 94/08 5
Prosecution evidence
4. In order to prove its case, prosecution examined following nine witnesses:
1. PW1 Ct. Satpal; who took samples from malkhana and deposited the same at FSL, Rohini for analysis.
2. PW HC Om Prakash; to prove recording of DD No. 4A dated 03.09.2008 and receipt of special reports vide DD No. 722723 at the office of ACP on 04.09.2008.
3. PW Ct. Harinder; to prove recovery and investigation.
4. PW Ct. Mukesh Singh; to prove recording of FIR.
5. SI Sunil Jain; to prove recovery, arrest and investigation.
6. Inspector M. L. Sharma; the concerned SHO.
7. SI Satyawan; to prove arrest of the accused persons and investigation.
8. HC Ishwar Singh; the concerned MHC (M).
9. HC Om Prakash; to prove recovery, arrest and investigation. Statement of accused persons
5. Statement of accused persons were recorded under Section 313 CrPC. Accused persons have pleaded false implication. Accused Mukesh pleaded that the police arrested him and Parveen from bus stand of Jaipur on the excuse of getting them employed and that on 02.09.2008 both of them were brought from Jaipur to Delhi.
Parveen Kumar Rajguru also pleaded that he and Mukesh Kumar were arrested by the police on 02.09.2008 from bus stand of Jaipur when police FIR No. 94/08 6 officials were accompanied by Deepak, brother of Mukesh. He has further pleaded that police let off Deepak but falsely implicated him and accused Mukesh.
Defence evidence
6. In their defence, accused persons have examined Sh. Deepak Sharma, cousinbrother of accused Mukesh as DW1 and DW2 HC Pardeep Kumar.
Arguments heard. File perused.
Discussion
7. As per prosecution version, on 03.09.08, a secret information was received by SI Sunil Jain of police station Narcotics Branch. To prove receipt of secret information, prosecution has examined PW5 SI Sunil Jain and PW2 HC Om Prakash.
Learned defence counsel has contended that this is a case where provisions of 42 of the Act have not been complied with, as the information was not recorded separately, and as such accused are entitled to acquittal. In support of his submission, learned counsel has referred to decision in Gurmeet Singh Vs. State of Punjab, 2010 (1) Crimes 302 (P&H).
This citation is incomplete being only a short note and as such of no avail to the accused persons.
In Narcotics Control Bureau Vs. Sukh Dev Raj Sodhi, 2011 (6) Supreme Court Cases 392, Hon'ble Apex Court reiterated that the obligation of the authorities under Section 50 of the NDPS Act is mandatory and that the FIR No. 94/08 7 provision of Section 50 must be very strictly construed, as held in Vijaysinh Chandubha jadeja v. State of Gujarat (2011) 1 Supreme Court Cases 609.
Hon'ble Apex Court further observed in Sukhdev Raj Sodhi's case that as per conclusion arrived in Vijaysinh Chandubha Jadeja case, it appears that the requirement under Section 50 of the NDPS Act is not complied with by merely informing the accused of his option to be searched either in the presence of a gazetted officer or before a Magistrate. The requirement continues even after that and it is required that the accused person is actually brought before the gazetted officer or the Magistrate. Constitution Bench made it clear further that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, an endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate.
In Sarju @ Ramu Vs. State of U.P, 2009 (4) C.C. Cases (SC) 204, it was held that even, admittedly, Shrikant Mishra had to authority to make search. Nothing was brought on record to show that the provisions of Section 42 of the NDPS act were substantially complied with. Reference has also been made to decision in Karnail Singh Vs. State of Haryana, 2009 (4) C.C. Cases (SC)1.
In the case of Naraynawami Ravishankar vs. Asst. Directorate of Revenue Intelligence (2002) 8 SCC 7, Hon'ble Supreme Court has held : "In the instant case, according to the documents on record and the evidence of the witnesses, the search and seizure took place at the Airport which is a pubic place. This FIR No. 94/08 8 being so, it is the provisions of Section 43 of the NDPS Act which would be applicable. Further, as Section 43 of the NDPS Act was not applicable in the present case, the seizure having been effected in a public place, the question of non compliance, if any, of the provisions of Section 42 of the NDPS Act is wholly irrelevant.
It was explained in Abdul Rashid Ibrahim Mansuri v.
State of Gujarat (supra) that the mandatory requirement of reducing the information to writing applied when the information is that the narcotics substance is kept or concealed in any building, conveyance or enclosed place. As far as the present case is concerned, the arrest, search and seizure having been made on the roof of the Palika car parking, undoubtedly a public place, the requirement of Section 42 does not apply, Therefore, the contention of the appellants in this regard is rejected."
On the other hand, Learned Addl. Public Prosecutor has submitted that this is a case where provisions of Section 42 have been duly complied with by recording the information received in dailydiary entry and then forwarding its copy to the immediate senior police officer i.e. The SHO, who in turn sent the same to the office of ACP.
In support of his contention, reference has been made by Ld. Additional Public Prosecutor for State to decisions in Karnail Singh Vs. State of Haryana, 2009 Cri LJ 4299 and State of Punjab Vs. Baldev Singh, AIR 1999 SC 2378.
Learned Additional Public Prosecutor has further submitted that when prosecution is required to establish its case, it does not mean that the degree of proof must be beyond a shadow of doubt. In support of this submission, learned Additional Public Prosecutor has referred to decision in the case of FIR No. 94/08 9 Iqbal Moosa Patel Vs. State of Gujarat, 2011 Cri LJ 1142.
Having regard to the above settled legal proposition for compliance with the provisions of Section 42 of the Act, this Court proceeds to find out as to whether this is a case of due compliance with these provisions or not.
In this case, according to PW5 SI Sunil Jain, on 03.09.2008, at about 5.15 a.m, a secret informer came to him at PS Narcotics Branch and informed that accused Parveen, resident of Manesar, M.P. is involved in supplying heroin in Delhi area in association with accused Mukesh Sharma, resident of Jhalawar, Rajasthan and that both the accused would come on that day in front of Delite Cinema, Asaf Ali Road, Delhi between 7.00 a.m. to 7.30 a.m. to supply heavy quantity of heroin to someone and that in case raid was conducted, all could be apprehended with heroin.
It is also in the statement of PW5 that he verified and produced the secret informer before Inspector M.L. Sharma, SHO in his office at about 5.30 a.m., who satisfied himself and then passed over this information to ACP Sh. Mahinder Singh Dabas, telephonically and the ACP directed him to conduct a raid and take appropriate steps.
Further according to PW5 SI Sunil Jain, he got recorded the secret information in DD No.4A at 5.45 a.m. This document is Ex PW2/A. Statement of PW5 in this regard finds supports from the statement of PW2 HC Om Prakash, who has proved recording of Ex PW2/A. Statement of PW2 regarding Ex PW2/A has not been subjected to any cross examination.
PW5 was questioned in his cross examination, if arrival entry of the FIR No. 94/08 10 secret informer was made at the police station, the witness replied that no such entry was made, as such details are kept secret. When asked as to whether PW5 had inquired from the secret informer about the place from where the peddlers would be coming, the witness stated that as told they were coming from Madhya Pradesh.
It is in the statement of PW5 that copy of Ex PW2/A was given to Inspector M.L. Sharma. PW6 Inspector M. L. Sharma, has supported the statement of PW5 by stating that on 03.09.2008 at about 5.30 am SI Sunil accompanied by secret informer and the informer told him that two boys namely Parveen and Mukesh, who used to supply heroin in the area of Delhi, would supply heavy quantity of smack at Delight Cinema, Asaf Ali Road and that they could be apprehended, if raid was conducted. According to PW6, he was satisfied with secret information and thereafter, he telephonically informed ACP Sh. M. S. Dabas regarding information. Witness has also deposed about recording of Ex PW2/A by SI Sunil Jain and that its copy was also provided to him under Section 42 of the Act. The fact that copy of Ex PW2/A was going to the delivered to the SHO, finds mention in Ex PW2/A itself. In his cross examination, PW6 denied that on 03.09.2008, he was not present at the police station at about 5.30 am. The witness reiterated about his satisfaction about the secret information and further stated to have neither noted down the names and addresses of peddlers anywhere nor maintained any record of such inquiry. It is in the statement of PW6 that he had forwarded Ex PW2/A to the ACP under his signatures at point Y. This information was received in the office of ACP FIR No. 94/08 11 through entry no.1339 in the diary register. It bears signatures of the ACP with date 03.09.2008.
In view of the above material, this Court holds that this is case where there is substantial compliance with the provisions of Section 42(2) of the Act.
Regarding arrest of the accused persons
8. Learned defence counsel has contended that neither any entry made in the log book of the vehicle has been proved nor the concerned driver Ct. Tavinder has been examined and as such the prosecution has failed to prove departure of the raiding party to the spot in any such government vehicle.
It is case of the prosecution that SI Sunil Jain constituted a raiding party including himself, Ct. Harinder, HC Om Prakash (the then constable) and Ct. Sohanpal, members of the raiding party were informed about the secret information. The secret informer was also accompanying the raiding party. They are alleged to have left police station in government vehicle bearing no.DL 1CH 0617 driven by Ct. Tavinder taking route via Vikas Marg, Ring Road, Rajghat, Red Light and JPN Hospital reached in front of Delite Cinema, Asaf Ali Road, Delhi at about 6.30 a.m. While leaving the police station, DD entry no. 5A is alleged to have been recorded at the police station. Same is Ex PW5/F. It was recorded at 6 am. Names of members of the raiding party and registration number of the government vehicle find mentioned in Ex PW5/F. It also stands recorded in it that a secret informer accompanied the raiding party. PW6 Inspector M. L. Sharma has also testified about departure of the raiding party alongwith the secret informer in the aforesaid vehicle. FIR No. 94/08 12
PW3 Ct. Harinder and PW9 HC Om Prakash have also deposed about constitution of the raiding party, of having been apprised of the secret information by SI Sunil Jain and about their departure for the disclosed place in the aforesaid vehicle, at 6 am, vide DD No. 5A.
It is true that Ct. Tavinder has not been examined or cited as witness and the log book containing entry regarding departure of the government vehicle from the police station to the spot has not been got proved on record, but the defence could call upon the prosecution witnesses to produce the log book. However, no such step appears to have been taken on behalf of the accused persons.
As noticed above, departure of the raiding party from the Police station for the spot stands established from the document Ex PW5/A and from the statements of PW3, PW5 and PW9.
Nonjoining of witness from the public before arrest
9. Learned defence counsel has contended that in this case, despite availability of persons from the public, no such person was associated in the party before arrest of the accused persons or search and that police official being interested in success of their case, no reliance can be placed on their statements. The contention further is that it establishes the defence plea that actually the accused persons were picked up by the police from Jaipur and brought to Delhi and then falsely implicated in this case.
On the other hand, learned Addl. PP has pointed out that in the given facts and circumstances, nonjoining of witness from the public does not FIR No. 94/08 13 adversely effect the prosecution version regarding arrest of the accused from near Delite cinema Delhi, when all the witnesses to the arrest and recovery have made consistent statements and there is no discrepancy or material contradiction therein.
PW3 Ct. Harinder, a member of the raiding party stated in his chief examination that SI Sunil Jain had asked 1012 persons from the public to join proceedings but no one agreed and then left the spot. In his cross examination he admitted that several persons passed by their side, on the road i.e. from the place of recovery. Further according to him, there are shops in the vicinity but those shops were lying closed on that day.
PW5 SI Sunil Jain stated in his chief examination to have asked 1012 persons from the crowd, but no one agreed. In his cross examination, the witness admitted that LNJP and GB Pant Hospitals are situated in front of Delite cinema. He volunteered that there is wide and multilevel parking in between. There is a police booth of police station Darya Ganj for beat constables around. Further according to the witness, before apprehending the accused persons, he requested 15 public persons to join investigation but they refused. At the time of formal arrest of the accused persons, no person from the public was asked to join the proceedings as admitted by SI Sunil Jain.
PW9 HC Om Prakash stated in his chief examination that SI Sunil Jain had requested 5 persons from the public, at the turn, after Rajghat traffic light junction, to join the raiding party, none agreed and they left without their names and address. When they reached in front of Delite cinema, six persons from the FIR No. 94/08 14 public were requested to join the raiding party but none agreed. He further stated that IO requested persons from the public to join the investigation before conducting search of the bag, but none agreed.
In his cross examination, the witness admitted that police officials remain at the police booth installed near Delite cinema, but no police official was present at the police booth at that time. As regards availability of witness from the hospital, the witness admitted that there is government hospital opposite the cinema, but none was called from the hospital.
In the case of Ajmer Singh vs. State of Haryana (2010) 3 SCC 746, Hon'ble Apex Court has held as under: "The submission that the evidence of the official witnesses cannot be relied upon as their testimony has not been corroborated by any independent witness cannot be accepted. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. It may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
FIR No. 94/08 15 Herein, when the secret information was received at about 5.15 a.m. and SI Sunil Jain formed raiding party and reached the spot at about 6.45 a.m. after having left the police station at 6 a.m. and there was scarcity of time, time of expected arrival of the accused being in between 7 to 7.30 a.m., non joining of witness from the public at that time does not adversely affect the case of prosecution.
Apprehension of the accused persons
10. PW5 SI Sunil Jain has deposed that he briefed the members of the raiding party and directed driver Ct. Tavinder to park the govt. vehicle at a distance of 50 mtrs. from the spot. At about 6.45 a.m. they took position in front of Delite Cinema. Ct. Harinder alongwith Ct. Sohanpal took position on the opposite side of the road. Further according to the witness, at about 7.05 a.m. both the accused were seen coming from the side of Ram Lila ground, on foot, both of them were identified by the secret informer. Secret informer left the spot after pointing at both the accused. To the same effect are statements of PW3 Ct. Harinder and PW9 HC Om Prakash.
Since the secret informer left the spot after having pointed out towards the accused persons, in verification of their identity, this Court does not find any merit in the contention of learned defence counsel that the secret informer was actually a witness and he should have been cited and examined as such.
It has come in the evidence of prosecution witnesses that both the accused stood in front of Delite Cinema at a distance of about 34 mtrs. from the place where SI Sunil Jain had taken position and started waiting for FIR No. 94/08 16 somebody. After about 34 minutes coaccused Praveen handed over the colourful bag to Mukesh accused and after taking the bag, the accused waited for 45 minutes and ultimately started going towards Ram Lila ground but they were apprehended at about 7.15 am. About this version of prosecution, there is no contradiction in the statements of PW3,5 or 9.
Defence plea of the accused
11. In their statements of under Section 313 CrPC, accused persons have denied all the incriminating circumstances appearing in evidence against them and pleaded pleaded false implication.
Accused Mukesh pleaded that the police arrested him and Parveen from bus stand of Jaipur on the excuse of getting them employed and that on 02.09.2008 both of the were brought from Jaipur to Delhi.
Parveen Kumar Rajguru accused also pleaded that he and Mukesh Kumar were arrested by the police on 02.09.2008 from bus stand of Jaipur when police officials were accompanied by Deepak, brother of Mukesh, his coaccused. Further according to accused Parveen, Deepak had asked them to move, without giving them a chance to inquire from him. He has further pleaded that police let off Deepak but falsely implicated him and accused Mukesh.
In their defence, accused persons have examined Sh. Deepak Sharma, brother of accused Mukesh as DW1. HC Pardeep Kumar has been examined as DW2.
DW1 Sh. Deepak Sharma stated that he is surpanch of Gram Panchayat Singhpur, Jhalawad (Rajasthan). On 02.09.2008, he was present with his FIR No. 94/08 17 cousin Mukesh Sharma (accused) at Jaipur, and on receipt of information regarding arrival of Mukesh Sharma at Jaipur, he went to Syndi Camp bus stand Jaipur to receive him. At the bus stand, some officials stopped them and expressed that they wanted to make some inquiry from both of them. Both of them were then pushed into one Alto car. Thereafter, police officials forcibly put Parveen also in the said Alto car and took all of them to DelhiJaipur highway in the said car. On the way, they were stopped near one Innova car and then, at the point of revolver, made to sit in the said car, which was driven to Delhi. That is how they reached Delhi in the morning of 03.09.2008.
As further stated by DW1, on the way, the aforesaid persons demanded money from him. Some of the police official took Mukesh and Parveen at some police station whereas two of them took him from one place to another while travelling in a car. He was then asked to contact his family members to arrange money, whereupon he contacted some of his relatives, family members and friends. Police official threatened him that he and Mukesh would be implicated in some Narcotics case. After sometime, he was threatened by the police that payment of Rs.10 lac could not made to one Narender Kumar @ Raju Yadav relative of Om Prakash Yadava police official, at Shyam Garh. He then passed message to his family members and the money was handed over to Raju Yadav at Shyam Garh. Thereupon, he was released at Sarai Kale Khan bus stand with promise that Mukesh and Parveen would be released after sometime. Accordingly, he left Delhi and reached Jaipur by bus. He checked out of the hotel where he had stayed and then reached at Bhawani Mandi. After FIR No. 94/08 18 having come to know that Mukesh had been falsely implicated in this case, he made complaint to Crime Branch against SI Sunil Jain, SI Satyawan and other police officials.
The witness has then testified as to how he was threatened on 12.12.2008 by Om Prakashpolice official, Narcotics Branch, not to pursue his complaint. On 13.12.2008, when at the directions of said Om Prakash, he reached hotel Mangal, Bhawani Mandi, Rajasthan, said Om Prakash made him to give in writing what stands recorded in document Mark DW1/D. On 14.12.2008, some police official from Crime Branch called him to hotel Shri Mathura Dhish, Bhawani Mandi, Rajasthan and met SI Pardeep Kumar but to fear and threat by police officials of Narcotics Branch, he made statement Mark DW1/D4.
While referring to the aforesaid statement of DW1, learned defence counsel has contended that it stand established that the police picked up Mukesh accused and his cousin brother Deepak Sharma from Jaipur and brought them to Delhi in the company of Parveen accused and then falsely implicated these two accused in this case, while letting off Deepak Sharma on payment of Rs.10 lac to one Raju Yadav at Shyam Garh.
According to DW1, he and his cousin Mukesh (accused) were stopped at bus stand of Jaipur and then made to sit in one car and ultimately shifted to another car, on way from Jaipur to Delhi. DW Deepak Sharma was a Sarpach of village Singhpur. Had they been so picked up from a bus stand, they would have raised hue and cry so as to attract persons present at such a public place in FIR No. 94/08 19 abundance. However, there is nothing on record to suggest that anyone of them raised hue and cry. No person from Jaipur has been examined to prove that trio were made to board a car at the bus stand of Jaipur. In absence of any such evidence, it is difficult to believe that police from Delhi could make a sarpanch, his nephew and another, board any such car at any such place so to take them beyond the jurisdiction of Jaipur.
Even otherwise, on way from Jaipur to Delhi, anyone of the three could raise hue and cry so as to attract persons from the public, employees who collected toll tax on highway, or any police official on any of the police post on the highway. Nothing of this sort appears to have been done by any of these three persons, which further belies the defence plea.
It is case of the prosecution that after arrest the Mukesh accused, his sister Ms. Madhu, was informed about the arrest on her mobile phone which finds mention in arrest memo Ex PW5/B whereas Kapil Kumar, brother of Parveen Kumar accused, was informed about his arrest on mobile phone number which finds mention in memo Ex PW5/D. There is nothing on record to suggest as to why these family members of the accused persons did not take any steps, immediately after they were informed on their mobile phone to make complaints to higher authorities that actually they had been picked up from Jaipur and they were not arrested on the given date and time when they were so informed on their mobile.
Had the accused persons to be got falsely implicated in a case like the present one, they could be caught apprehended from Narcotics of Jaipur, by FIR No. 94/08 20 passing on of information by Delhi Police. It remains unexplained as to why Narcotics Branch of Delhi would travel to Jaipur to bring an acused from there to Delhi for being implicated in such like case.
On 02.09.2008, DW1 Sh. Deepak Sharma is alleged to have gone to the residence of Chief Minister of Rajasthan at Jaipur. If this is believed to be correct, DW1 could straight way bring the matter to the notice of the Chief Minister, if not on 02.09.2008, on his return from Delhi to Jaipur as alleged by him. However, there is nothing in the version of DW1 that he took any such steps.
As regard payment of Rs.10 lac meant for Narcotics Branch of Delhi, DW1 has not examined any of his family members to prove this payment through one Rajue Yadav at Shyam Garh.
As regards threat to not press the complaint submitted to Crime Branch of Delhi, it is not been disputed by the defence that the complaint was not pressed, but DW1 has failed to explain as to how and why he, being a sarpach of a Gram Panchayat succumbed to the pressure of one police official namely Om Prakash and that too in his own town. Instead of withdrawal of the complaint, he could take up the matter with the higher authorities in his city or report the matter Crime Branch of his own city. However, nothing of this sort appears to have been done by DW1 which further belies the defence plea put forth by the accused, through DW1.
DW2 HC Constable Pradeep Kumar of Special Team, Crime Branch has deposed that compliant dated 16.12.2008 was received on 22.12.2008. He FIR No. 94/08 21 further stated that Ex DW2/B statement of Deepak Sharma was recorded on 15.12.2008 during inquiry of an anonymous complaint dated 23.10.2008, received by transfer. Defence has failed to explain as to why an anonymous compliant was filed and as to why DW1 Sh. Deepak Sharma did not file any such complaint himself under his own signatures.
A perusal of the cross examination of the prosecution witnesses would reveal that some what different version was put to them during their cross examination.
In the cross examination of PW3, it was never suggested to him that Deepak Sharma was also brought from Jaipur to Delhi. What was suggested to PW3 is that the accused persons were not apprehended from Delhi but they were brought from Jaipur. It was further suggested to him that PW3 and his companion had apprehended sarpanch of village Bani, Tehsil Pachpahar. Name of Deepak Sharma was not suggested to PW3.
PW5 was suggested in his cross examination that he and his companion made out station visit to collect money from Deepak Sharma who had made complaint against them. The witness denied this suggestion. It was also suggested to him that they had assured release of Parveen in case their monetary demand was met. It was not suggested to PW5 that on payment of Rs.10 lac DW1 was released by them. What was suggested to PW5 is that father of Parveen managed Rs.1.5 lac from a third person and the same were paid to the witness. There is no defence evidence regarding payment of any such money to anyone for onward transmission to police official of Narcotics FIR No. 94/08 22 Branch for release of Parveen. It was further suggested to this witness that a sum of Rs.13 lac was collected by illegal gratification on 02.09.2008 at Jaipur for release of Om Prakash. However, there is no defence evidence in proof of this suggestion.
PW9 HC Om Prakash was suggested in his cross examination that he had apprehended the accused persons on 01.09.2008 and 02.09.2008 from out station and then they were brought to Delhi. It was not suggested to him that many police officials of Narcotics Branch had brought the accused persons alongwith Deepak Sharma from Jaipur to Delhi or that Deepak Sharma was released from Delhi with any promise for release of accused Parveen. What was suggested to PW9 regarding Deepak Sharma that he was let off by SI Sunil Jain at Jaipur after payment of illegal gratification of Rs. 13 lac to the witness (PW9) and brought Parveen alone on his refusal to give Rs.1.5 lac. As noticed above, PW5 was suggested that father of Parveen had arranged and paid a sum of Rs.1.5 lac. Had any such payment been made for letting off Parveen, it remains unexplained as to why he was still detained and arrested in connection with this case.
In view of the above, discussion, the defence plea put forth by the accused and the version put forth by DW1 Deepak Sharma is not at all believable.
Notice under Section 50 of the Act
12. Picking up thread, after the accused were arrested, SI Sunil Jain proceeded to take further steps. As per prosecution version narrated by PW5 SI FIR No. 94/08 23 Sunil Jain, PW3 Ct. Harinder and PW9 HC Om Prakash that the SubInspector introduced the members of police party to both the accused that he had secret information against them and further that their search was required to be conducted. SI Sunil Jain then informed the accused persons of their right under Section 50 of the Act, by way of notice. Both the accused gave reply in writing, so as not to avail of their right of search before gazetted officer or Magistrate.
Copies of notices under Section 50 of the Act are ExPW3/A and Ex PW3/B whereas refusal by the accused person to exercise this right are contained in Ex PW3/C and Ex PW3/D. A perusal of Ex PW3/A would reveal that SI Sunil Jain, vide this notice apprised Mukesh Sharma accused of his legal right as contained in Section 50 of the Act. This notice bears attestation of constable Om Prakash and constable Harinder. Similarly, notice Ex PW3/B was served upon Parveen Kumar Rajguru accused apprising him of his legal right. This notice also bears attestations of two constables.
Ex PW3/C is the reply furnished by Mukesh accused to the aforesaid notice whereas Ex PW3/D is the reply furnished by Parveen Kumar accused to notice Ex PW3/B. The reply furnished by each of the accused also bear attestation of the two constables named above.
Learned Addl. PP has rightly submitted that although in this case recovery has been made from the bag, provisions of Section 50 of the Act have been substantially complied with.
FIR No. 94/08 24
Recovery of Contraband
13. PW3 Ct. Harinder, PW5 SI Sunil Jain an PW9 HC Om Prakash have testified that search of accused Mukesh led to recovery of two polythene bags kept under a white towel lying in the bag which was seized from him; that polythene packets contained matiala coloured powdery substance and that their openings were tied with the rubber bands ; that contents of both the packets was tested using the field testing kit and same were found to be heroin.
Further it is in the statements of the three witnesses named above that large packet was given mark A and small packet was given mark B; that both the packets were weighed separately; that total weight of heroin in the large packet mark A was 1.5 kg whereas the total weight of heroin in small polythene packet mark B was 500 gm.
It is also in the statement of the prosecution witnesses that 2 samples of 5 grams each were drawn from each packet; that samples drawn from the packet mark A were given mark A1 and A2, whereas samples drawn from the packet mark B were given mark B1 and B2.
All the three PWs further deposed that the remaining heroin in the respective packets was kept as it is and converted into separate parcels which were given mark A and mark B, whereas the towel was kept in the same bag and the parcel was sealed and given mark C. PW5 further deposed that he filled in FSL form and affixed his seal bearing impression "5B PS NB DELHI" on all the parcels and also on form FSL and that the seal after use came to be delivered to Ct. Om Prakash. PW3 FIR No. 94/08 25 and PW9 have also made statements in consonance with the statement made by SI Sunil Jain. It is in their statements that the case property was seized vide a recovery memo Ex PW3/E. Ex PW3/F is the memo to the effect that nothing incriminating was recovered from Parveen Kumar accused.
During trial, parcel A when produced was exhibited as Ex P1; parcel B as Ex P2, parcel C as Ex P3, parcels A1 and B1 as Ex P4 and Ex P5 and the samples parcels as A2 and B2 as Ex P6 and Ex P7.
Recovery memo Ex PW3/E and memo Ex PW3/F bear attestation of the two constables. All the material particulars regarding the recovery and the steps taken by SI Sunil Jain consequent upon recovery, regarding testing of and weighing of the contraband, drawing of samples, sealing of sample parcels and the other parcels containing the residue find mention in this recovery memo Ex PW3/E. Prosecution rules out possibility of tampering with case property
14. After use the seal was handed over by SI Sunil Jain to constable Om Parkash, to rule out possibility of tampering with the case property. In the crossexamination of PW5 on the point of seal, the only suggestion put from the side of defence was that he had handed over seal to a fellowcolleague in order to misuse the seal. But the witness denied the suggestion. Factum of delivery of seal finds mentioned in the recovery memo. Copy of this memo was sent to the police station immediately after its preparation, alongwith the parcels. PW6 Inspector M.L.Sharma stated to have put his signatures not only on the samples but also on the copy of the recovery memo as well as FSL form. FIR No. 94/08 26
So prosecution has ruled out possibility of tampering with the case property from the spot to the Malkhana on the same day.
The SHO affixed his seal on the parcels and form FSL, and also mentioned number of the FIR thereon. The case property came to be entrusted by the SHO to MHC(M). Further investigation of the case was assigned to SI Satyawan.
On reaching the spot, SI Satyawan took over memos and custody of both the accused persons, prepared rough site plan, arrested the accused persons and conducted their personal search. On completion of investigation at the spot, both the accused persons were brought to police station and produced before the SHO. The articles recovered on personal search of the accused persons were deposited with MHC(M). Other case property also came to be deposited with the MHC(M).
Compliance with provisions with Section 57
15. It has come in prosecution evidence that special report under Section 57 of the Act was prepared and forwarded to the ACP. The reports prepared by SI Sunil Jain and SI Satyawan, submitted to the SHO and then forwarded to the ACP are Ex PW2/C and Ex PW2/D respectively. So, this is case complete compliance has been made with provisions of Section 57 of the Act.
Nature of Contraband
16. The sealed samples and the FSL form were sent to FSL for analysis.
From the evidence available on record, this court finds that there is nothing to suggest that the samples were allowed to be tampered with before the same FIR No. 94/08 27 reached FSL for analysis. It stands established from the report Ex PX of expert that the seals on the parcels were intact and tallied with the impression of the seals as available on the FSL form. PW6 Inspector M. L. Sharma has testified about affixing his seal on all the parcels as well as on Form FSL when the same were brought to him at the police station on the same day at 12.47 pm. He also deposed to have mentioned in the parcels, FSL Form and copy of seizure memo, the number of the FIR and also to have signed the same. He further deposed about deposit of the case property with PW8 HC Ishwar Singh, MHC (M) at about 1.15 pm against entry made in register no. 19. DD No. 11 A ( ExPW6/A) made in this respect on the same day also lends corroboration to the version of prosecution to rule out possibility of tampering with the case property including the samples. PW1 Ct. Satpal and PW8 HC Ishwar Singh have deposed that the case property was not allowed to be tampered with when the same remained with them. On analysis of contents of sample, the Assistant Director (Chemistry), FSL opined as under: "i. On chemical, TLC and G. C. Examination, exhibits A1 & B1 were found to be contain paracetamol, caffeine, acetylcodeine, Monoacetylmorphine, Diacetylmorphine & Alprazolam.
ii. However, on Gas Chromatography examination, exhibits A1 & B1 were found to contain Diacetylmorphine & Alprazolam.
ExhibitA1 7.3% & 31.7% respectively.
ExhibitB1 6.3% & 10.2 % respectively."
During trial, it was suggested from the side of defence that transfer of the FIR No. 94/08 28 bag containing polythene bags has been shown constructive possession of the other. The suggestion was denied by the prosecution witness. Had any of the two accused to be falsely implicated, police could show recovery of one polythene bag from the one and that of the other from the coaccused, having regard to the heavy quantity. There was no need to twist the facts. Rather, the prosecution version regarding handing over the bag by one to the other at the spot makes the same more convincing and natural.
17. In view of the above discussion, this court finds that prosecution has fully proved its case against the accused persons. Since they kept in possession heroin on 3.9.2008, Mukesh Sharma accused is held guilty of the offence punishable under Section 21 of Narcotics Drugs & Psychotropic Substances Act, 1985.
A regards, Parveen Kumar Rajguru accused, as noticed above, he was charged for commission of an offence under Section 29 of the Act on the allegation that he abetted commission of offence under Section of the Act by delivering the bag containing the contraband to Mukesh Sharma accused. This Court finds that even after delivery of the bag containing the contraband, Parveen Kumar Rajguru accused remained at the spot while accompanying his coaccused Mukesh Sharma. So this is a case where prosecution has fully established that even Parveen Kumar Rajguru accused was in possession of the contraband. Parveen Kumar Rajguru accused knew from the very beginning as to what is the case of the prosecution against him i.e. it is he who handed over the bag to Mukesh Sharma accused, and that he remained at the spot, even FIR No. 94/08 29 thereafter. Evidence has been recorded in presence of Parveen Kumar Rajguru accused. He cannot be said to have been prejudiced and as such the charge does not require to be amended. Consequently, Parveen Kumar Rajguru accused is also held guilty of the offence under Section 21 of Narcotics Drugs & Psychotropic Substances Act, 1985.
Both the accused are therefore convicted for the offence under Section 21 of Narcotics Drugs & Psychotropic Substances Act, 1985.
Let the convicts be heard on the point of sentence.
Announced in Open Court
on 22.10.2011 (Narinder Kumar )
Special Judge, NDPS (Central)
Delhi.
FIR No. 94/08 30
IN THE COURT OF SH. NARINDER KUMAR
SPECIAL JUDGE, N.D.P.S. (CENTRAL): DELHI
S. C. No. 95/2008
FIR No. 94/2008
PS Narcotics Branch
U/s 21 of NDPS Act
In the matter of :
State
Versus
1. Mukesh Sharma,
S/o Sh. Radhey Shyam Sharma,
R/o Village Bani, Thana Pagaria District,
Jhalwar Rajasthan.
2. Parveen Kumar Rajguru,
Sh. Ramesh Chand Rajguru,
R/o V.P.O Shyam Garh, District,
Mandsaur, M. P.
.....Accused persons
ORDER ON SENTENCE
Present: Sh. Rajiv Mohan, Learned Addl. P.P. For State.
Convicts Mukesh Sharma and Parveen Kumar Rajguru in JC, with their counsel Sh. Naveen Gaur, counsel for both the convicts Heard on the point of sentence. Convict Parveen Kumar submits FIR No. 94/08 31 that he is 30 years of age, having wife and a child aged 5 years and that leniency be shown on the point of sentence.
Convict Mukesh Sharma has submitted that he is 23 years of age, and is to support of his wife, and as such lenient view be taken on the point of sentence.
Sh. Naveen Gaur, learned counsel for convicts has also prayed for lenient view on the point of sentence having regard to the quantity which is not commercial one, submissions put forth by the convicts and that they are in custody since 03.09.2008.
Learned Additional Public Prosecutor for the State has not disputed that the quantity of narcotic drug recovered from the possession of the convicts is not commercial but submitted that having regard to the serious nature of the offence and the impact of drugs on the society, the convicts, who are drug traffickers, do not deserve any leniency.
Section 21(b) of the Act provides punishment by way of rigorous imprisonment which may extend to ten years, and with fine which may extend to 1 lakh rupees. The offence under Narcotics Drugs & Psychotropic Substances is serious in nature. The convicts were carrying heroin for supply in the area of Delhi.
Having regard to the quantity of the heroin which was lesser that commercial one but much greater than smaller quantity, this Court deems it a fit case to sentence the convicts to rigorous imprisonment for a period of five years and to pay fine of Rs.50,000/ each. Accordingly, both the convicts Mukesh FIR No. 94/08 32 Sharma and Parveen Kumar Rajguru are hereby sentenced to rigorous imprisonment for a period of five years with fine of Rs.50,000/ each or in default of payment of fine, the defaulter shall undergo further rigorous imprisonment for five months, for the offence under Section 21 ( b) of the Act.
The period of imprisonment already undergone during investigation, inquiry and trial to be set off against the period of sentence awarded vide this judgment.
While parting with the judgment, it may be mentioned here that although the convicts have been sentenced to rigorous imprisonment as provided under the Act, this Court finds that such like convictsdrug traffickers also need to be sensitized about the illeffects of narcotic drugs in which they deal, so as to give a jolt to their conscience, by making them feel and realize that how many persons do suffer at their hands because of consumption/intake of narcotic drugs and psychotropic substances, which they supply.
Drug addiction is not a new phenomenon, but it has spread like an epidemic. It has affected people of each strata of society. Just one puff or intake is sufficient to make one, a drug addict. A drug addict finds it difficult to survive if unable to get next dose of drug. In case of a drug addict, not only he suffers pain and agonies, his family members like parents, sisters and brothers also feel the pain and humiliation, while having all sympathies for him. That is why, this Court has felt the need of sensitization of such like drug traffickers, of the conditions of drug addict in which he finds himself, wherever he is, either struggling for his life at his house or somewhere in the hospital. Convicts in FIR No. 94/08 33 such like cases, while they undergo sentence in jail, can be taken to Hospitals, Drug Deaddiction Centres, periodically, or at the jail itself, they can be shown visuals of such instances, so that they may themselves see the pain and agony of victims of drug menace, as the visuals would leave indelible impression on their minds. Although Narcotics Drugs and Psychotropic Substances Act does not contain any such provision, it is for government and all the concerned authorities, including Prison authorities to ponder over as to the manner in which suchlike drug traffickers can be sensitized of the pains and agonies of a drug addict, so that when such like convicts become free from jail, they do not opt for such like nefarious trade.
Case property be disposed of in accordance with law on expiry of period for Appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 22.10.2011 (Narinder Kumar )
Special Judge, NDPS (Central)
Delhi.
FIR No. 94/08 34