Delhi District Court
State vs . Gullo Devi on 25 May, 2010
IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE - NDPS
PATIALA HOUSE COURTS : NEW DELHI
Date of Institution: 24.07.2006
Judgment reserved on: 25.05.2010
Date of pronouncement: 25.05.2010
SC No. 74/07
ID No. 02403R0407562006
FIR No. 44/06
P.S. Nr. Branch
U/s. 21 NDPS Act
State Vs. Gullo Devi
w/o Sh. Pooran Singh
R/o. Kachhi Colony, Ghasi Pura,
New Delhi
(CONVICTED)
JUDGMENT
1. Prosecution case is that on 30/5/2006 at about 1:00 p.m. ASI Paramjeet Singh received a secret information that Gullo Devi r/o Ghassipura, Kacchi Colony, Najafgarh involved in supplying of ganja would come in between 2:00 to 2:30 p.m at bus stop, Nangli Dairy to supply ganja. He produced the informer before the SHO Insp. Sudhir Singh. He after making inquiry conveyed the information to ACP Sh. Mehar Singh who directed him to conduct raid. A DD no. 11A was recorded in the roznamcha.
A raiding party comprising of ASI Pramjeet Singh, HC 1 Satbir Singh, HC Mohan Singh, Lady Ct. Pramod along with secret informer proceeded at the spot in a govt. vehicle DL 1CH 3426. It reached near Nangli dairy bus stop at about 1:50 pm. On the way some persons were requested to join but none agreed.
At about 2:10 p.m. accused came from the side of Nangli dairy with a white colour plastic bag (Katta) on her head. On the pointing out of the informer, she was apprehended. The party gave their introduction to the accused, told her about the information and gave her notice u/s. 50 NDPS Act on which she refused to call a Gazetted Officer or Magistrate for her search. The katta was checked. Some material appeared to be ganja was recovered weighing 10 kg. Two samples of 500 grams each were separated from the substance and given mark A and B. Remaining ganja was kept in the same katta from which it was recovered and given mark C. The samples and the case property were sealed with the seal of PS. Form FSL was prepared on the spot on which same seal impression was put. Seal after use was given to Lady Ct. Pramod. Rukka alongwith the case property, samples, FSL form and the copy of the seizure memo was sent to the Police Station through HC Satbir. He after giving rukka to the duty officer, produced the case property before the SHO who put his seal of 1 SHO NBR Delhi, called the MHC(M) and got it deposited in the malkhana after getting it entered in register no. 19. Further investigation was conducted by SI 2 Gurusewak Singh. He prepared the site plan, arrested the accused and recovered the copy of the notice from her personal search. ASI Paramjeet Singh and SI Gurusewak submitted reports u/s 57 NDPS Act qua seizure and arrest which were forwarded by the SHO to the senior officers. The samples were sent to the FSL. As per the report, on TLC examination, ExA was found to contain tetrahydrocannabinol, a main constituent of Cannabis plant. On morphological and microscopical examination, sample ExA, was identified to be dried Indian Hemp i.e. ganja. After the investigation, accused was sent for trial for offence punishable u/s 20 NDPS Act.
2. On her appearance, after complying with the requirements contemplated under section 207 Cr.P.C and hearing arguments, prima facie case was made out and the charge was framed against the accused u/s 20 NDPS Act. She pleaded not guilty and claimed trial.
3. To substantiate its allegations against the accused, prosecution examined as many as nine witnesses.
PW1 Ct. Rohtas had taken the sample to FSL Rohini. PW2 HC Omkar Singh was duty officer. He had recorded FIR ExPW2/B and DD no. 14A and DD no. 16A ExPW2/C and 3 ExPW2/D. PW3 HC Jagdish Prasad was the MHC(M). He had handed over the sample to Ct. Rohtas for taking it to FSL vide RC no. 58/21 ExPW3/A, obtained the receipt ExPW3/B and received the FSL result through Ct. Dalbir. He deposited the same in the malkhana and made entry ExPW3/C. PW4 HC Yashpal was SO to DCP. He had received the special reports u/s 57 NDPS Act ExPW4/A and ExPW4/B regarding seizure and arrest, entries of which were made in the register vide ExPW4/C and D. PW5 Lady Ct. Pramod had witnessed the recovery proceedings. She had received the seal after use.
PW6 HC Satbir had taken the rukka to the police station and produced the case property before the SHO.
PW7 ASI Pramjeet Singh had investigated the case. He had recorded DD no. 11A ExPW7/A qua the secret information. He had served notice u/s 50 NDPS Act ExPW5/A to the accused and seized the case property vide memo ExPW5/C after drawing samples. He had also prepared rukka ExPW7/A and submitted report u/s 57 NDPS Act ExPW7/D. PW8 SI Gursewak did the investigation after registration of the case. He had prepared the site plan ExPW7/B, arrested the accused vide arrest memo ExPW5/D. He had produced the accused 4 before SHO. He got the sample sent to FSL, Rohini and submitted the arrest report u/s 57 NDPS Act ExPW4/B. PW9 Insp. Sudhir Singh was the Acting SHO at the relevant time. He had received the information submitted by Pw7 as well as the reports u/s 57 NDPS Act ExPW7/D and ExPW4/B and forwarded to the senior officers.
4. The accused was examined u/s 313 Cr.P.C. wherein she claimed herself to be innocent and falsely implicated in this case. She examined herself and her husband as DW1 and DW2. She stated that at about 7.30 pm when she was feeding the cattles, one Sardarji with two policeman and Shakal Dev came at her house, she was enquired upon about her involvement in trafficking of ganja and taken to the police station where her thumb impression was taken on some papers after extending threats. That sardarji had demanded Rs. 50,000/ to release her. She stated that Shakal Dev was her neighbour with whom her husband had some dispute. Dw2 deposed on the lines of Dw1 and stated that he had enmity with Shakal Dev.
5. I have heard the arguments advanced by Ld. APP for the State and Ld. counsel Sh. B.B. Singh for the accused.
6. Ld counsel argued with vehemence that there are material 5 contradictions in the testimony of the police officials which do not find corroboration from independent witness, through according to the prosecution the accused was apprehended from a public place at the bus stand. The accused was illegally detained till 7.30 pm and there was no written authority with Pw8 to direct Pw5 to search the accused. Pw6 is silent how he knew that Shakal Dev was related to the accused.
Ld counsel further contended that as per the seizure memo, the samples were weighing 500 grams each but the CFSL report indicated the weight of the sample to be 538 grams. In support of his contentions Ld counsel relied upon the case of Karam Chand Vs. State 126 (2006) DLT 272, Eze Val Okeke Vs. NCB 116 (2005) DLT 399, Kashmir Singh Vs. NCB 2006 (3) JCC (Narcotics) 139, Ramesh Kumar Vs. NCB 2005 (3) JCC (Narcotics) 217, Rajesh Jagdamba Avasthi Vs State of Goa (2005) 9 SCC 773, Mohd Ramzan Vs. State 120 (2005) DLT 417 to contend that the prosecution case is not free from doubt.
7. Ld APP per contra argued that it is a case of recovery of 10 kg of ganja. Pursuant to the information, the accused was apprehended from the bus stand at Nangli Dairy. No tampering in the case property was observed. The variation in weight could be due to the type of scale used. All the link witnesses have been examined. The testimony of the prosecution witnesses remained consistent and 6 cogent. Efforts were made to join public persons but no one came forward. There is enough material on record which proves the guilt of the accused beyond reasonable doubt.
8. I have considered the rival contentions and gone through the evidence and the documents placed on record.
9. In the instant case at about 1.00 pm Pw7 had received the information about the accused that she would come at the bus stop in between 2.00 pm to 2.30 pm to supply ganja. He had produced the informer before Pw9 who was acting as SHO. He after getting satisfied passed on the information to ACP and to that effect DD no. 11 A Ex. Pw7/A was recorded in the roznamcha at 1.20 pm. It was diaried and forwarded to the ACP as apparent from the endorsement on Ex. Pw7/A. Pw9 has stated that Pw7 had brought the informer in his office at 1.10 pm and Pw7 recorded the DD at 1.20 pm. Pw7 has stated that they left the spot at 1.30 pm in a government vehicle DL 1CF 3426 and reached at Nangli Diary bus stop at 1.50 pm. I do no not find substance in the contention of Ld counsel that everything was done at 1 pm and it was a fabricated DD. The time appearing on the DD and the documens would show that after the information, the raiding party left for the spot at 1.30pm. Even otherwise, the recovery was effected from a public place and not from the private building, 7 conveyance etc. Section 43 of the Act does not contemplate taking down in writing the information given by any person relating to an offence punishable under Chapter IV. Such a requirement is contemplated only u/s. 42 of the Act.
10. Pw7 has stated that at the spot, at about 2.10 pm, the accused with a plastic bag on her head came from the side of Nangli Dairy and kept the plastic bag on the ground at the bus stop. She on the identification and pointing out of the informer was apprehended. He stated that the accused was apprised of the information and was given opportunity to be searched before a Gazetted Officer or a Magistrate and she was also offered the search of the raiding party and vehicle and to that effect a notice u/s. 50 NDP Ex. Pw6/A was given which was explained which she refused and got written her refusal Ex. Pw5/B on the original notice and put her thumb impression. Pw5 the L/Constable has corroborated this fact and stated that she had conducted the personal search of the accused and recovered the carbon copy of the notice u/s. 50 besides other belongings. As regards authority, Pw5 was the member of the raiding party. Being the lady constable, she could take the search of the accused on the instructions of Pw7 and Pw8. Thus due compliance u/s. 50 NDPS Act was made.
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11. PW7 has stated that the bag was searched and it was found to contain some material appearing to be ganja. The weight of which was found to be 10 kg. He stated that 2 samples of 500 grams each were taken out and given mark A and B. The samples and the bags were sealed with the seal of PS and seal after use was given to Pw5. Form FSL was also prepared and the case property was seized vide memo Ex. PW5/C. Pw5 the lady constable and Pw6 the other witness of the recovery duly corroborated his testimony. Pw5 has stated that the weighting scale and the weights of 10 kilo, 5 kilo, 1 kilo and 500 grams were taken by them which fact is reiterated by Pw6 and Pw7 in their testimony. Admittedly the FSL report Ex. A indicated the weight of the sample 538 grams but it was with cloth cover. Since the minimum weight carried by the IO was of 500 grams so it was not possible to take the weight, to the fraction of grams. Though Pw9 has stated that PW7 had taken with him the electronic weighing machine but the members of the raiding party have categorically stated that they had used ordinary balance with weights. Further PW9 was not the member of the raiding party and he was not the person who had handed over the electronic weighing as alleged by him. So no much emphasis can be given on his testimony on this aspect.
12. During arguments ld counsel had referred the cases supra. 9 It is relevant to note that on the spot ordinary weighing scale was used but in the laboratory, the weight of the sample is taken with precision. Normally physical balance is used in the laboratory. Unless both are the scales are 100% accurate, the possibility of the two scales showing some variation, on weighting, cannot be ruled out. Further the weight of the sample in the laboratory was with the cloth. Perusal of the testimony of prosecution witnesses would show that the samples had the seal of PS and 1 SHO NBR DELHI when received in the laboratory. The chemical examiner had tallied the seals with the specimen seals forwarded with the samples. In this case, prosecution has examined all the link witnesses ie Pw7 the seizing officer, Pw6 who had taken the case property to the police station, Pw9 who had put his seal on the case property, Pw3 moharrar malkhana and Pw1 who had taken the sample to FSL and no tampering with the seal was observed. The case property was also produced before Pw5 which she correctly identified as Ex. P1 to P3.
13. Since there was no tampering with the seals put on the samples, it is obvious that the discrepancies in the weight recorded by the police officers on the spot and the weight recorded by the FSL was on the account of different scale being used and not on account of someone having tampered with the parcels containing the 10 samples. All the samples analysed in FSL were found to contain ganja. The orders in the case of Mohd. Ramzan (Supra), Ramesh Kumar (Supra), Kashmir Singh (Supra) were not on merits of the case after the trial and in any case it does not lay down a legal proposition to the effect that even if there is minor discrepancy in the weight of the samples sent for analysis, the accused would be entitled to acquittal on that ground alone. In the case of Rajesh Jagdamba (Supra) the seals put on the two envelops soon after the alleged recovery of charas was different from the seal found on them by PW1 who conducted the analysis of the substance forwarded to him in the two envelops. The Hon'ble Supreme Court noticed that there was discrepancy as the inscription on the seal according to panch witnesses was 'ANCPS' while according to PW4 it was 'Anti Narcotic Cell Panaji at Goa'. According to PW1, it was 'Anti Narcotic Cell'. In my view the above referred judgments do not help the accused in the facts and circumstances of the present case. In this case there is no discrepancy as regards the inscription on the seal. In the case of Gita Lama Tamang Vs. State of (GNCT) of Delhi 2006 (3) JCC (Narcotics) 197, the case of the prosecution was that sample weighing 5 grams was taken from the contraband seized from the appellant whereas as per the report of CFSL, the weight was found to be 3.29 grams. It was observed by Hon'ble High Court that the difference in weight could be due to moisture and when the sample was found in intact condition having paper slip bearing signature of 11 the appellant,difference in the weight does not make any difference. Similar view was taken in Gurdev Kaur vs. State of Haryana 2002 Crl.L.J.3016, which was relied upon in the case of Gita Lama Tamang (Supra).
14. As regards joining of public witness it has been stated by prosecution witnesses that on the way, passerby were requested and even at the spot some persons were requested but none agreed so it cannot be said that no effort was made by the investigation agency. Joining public person is a rule of caution not the rule of law. If the testimony of police officials is consistent and cogent, it can become the basis of the conviction of the case. The possibility and availability of a public witness for joining investigation is a fanciful myth like meeting of the sky at the horizon. The near you go, the far it becomes and the ultimate meeting point never reaches. The public witness now a days has become a rare commodity. No one is ready to join police investigation either because of the fear of the accused or because of the inconvenience to be suffered in attending the courts. In Delias Christopher v. Customs 2004(3) JCC 147 it was held "It is true that public witnesses inspire more confidence and enable the court to return findings with added confidence but the law is well settled that a conviction may be based on the testimonies of official witnesses even.
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15. Ld counsel has contended that the accused was apprehended at about 2.00 pm but her personal search was conducted at 7.30 pm. The information of her arrest was given to one Shakal Dev. Pw6 did not say how he contacted Sakal Dev or whether he was the relative of the accused, on the contrary both Dw1 and Dw2 have stated that they had enmity with Shakal Dev and he was mastermind in implicating her in the present case. Pw8 has stated that the search of the accused was conducted by Pw5 in the vehicle but Pw5 has stated that the search was conducted on the spot.
16. I have gone through the case file as well as the evidence on record. The accused was arrested on 30.5.06 at 7.25 pm. The information of arrest was given to Shakal Dev. The accused had put the thumb impression on the arrest memo Ex. PW5/D. No such suggestions were given to Pw8 that the accused had enmity with Shakal Dev or he was not to be informed. Facts and circumstances show that she herself had given the name and address of Shakal Dev whom the information of arrest was given. There was no suggestion from the accused that it had become dark at 7.25 pm. Pw5 did not say that she had conducted the personal search of the accused at the spot. The recovery was effected from the bag she was carrying. Dw1 and Dw2 did not produce any material to show that they had 13 dispute with Shakal Dev. Dw1 has stated that she was threatened and tortured but no complaint of this sort was lodged to the senior officers. Same was the reply of Dw2. When the accused was produced in the Court, she did not complain that she was threatened or beaten by the police. Further no such suggestions were given either to Pw7 or Pw8 that the accused was falsely implicated at the instance of Shakal Del or she was subjected to beating. In this view of the matter, no much credence can be given to the testimony of Dw1 and Dw2.
17. In the case of Krishna Mochi & Ors. vs. State of Bihar & Ors. 2002(2) CC Cases (SC) 58 it was held that : It is the duty of the court to separate grain from chaff - when chaff can be separated from grain, it could be open to the court to convict the accused notwithstanding that evidence is found difficult to prove guilt of other accused persons - falsehood of particular material witness or material particular would not seclude it from the beginning to end - the maxim Falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liar".
18. In this case accused failed to rebut the two statutory presumptions in favour of the prosecution u/s 35 and 54 of the Act. In the case of Madan Lal v. State of HP 2003 (3) JCC 1330 it was held 14 that once possession is established, the person who claims that it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge. Section 35 of the Act is given a statutory recognition of this position because of presumption available in law and similar is the position in terms of Section 54 where also presumption is available to be drawn for possession of illicit articles.
19. In the light of above discussions no doubt is left in my mind that the accused illegally acquired, possessed and dealt with the narcotic drugs ie ganja, a controlled substance and thereby committed offence punishable u/s 20(b)(ii) B of the NDPS Act. I hold the accused guilty of the offence and convict her thereunder. Announced in open Court on this 25th day of May, 2010 (Sanjiv Jain) Special Judge NDPS : New Delhi Patiala House : New Delhi 15 IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE - NDPS PATIALA HOUSE COURTS : NEW DELHI FIR No. 44/06 P.S. Nr. Branch U/s. 21 NDPS Act State Vs. Gullo Devi ORDER ON SENTENCE
1. Vide separate judgment accused Gullo Devi has been convicted of the offence punishable u/s 20(b)(ii) B of the NDPS Act.
2. Ld. APP has prayed for maximum sentence provided under the statute and submitted that the sentence should be proportionate to the gravity of the offence.
3. Ld. Counsel Sh. B.B. Singh submitted that the accused is aged about 55 years, has a responsibility of upbringing of five minor children. her elder son is a patient of polio and totally dependent on her even for attending the call of nature. She has remained in custody for about six months and here is no one except her to look after the family. Ld counsels has stated that keeping in view her pathetic condition and extrenous circumstances she deserves a 16 lenient view.
4. I have considered the submissions.
The Hon'ble Supreme Court in the case of Union of India Vs. Kuldeep Singh 2004 Vol. 2 SCC 590 held :
Imposition of sentence without considering its effect on the social order in many cases may be unreally a futile exercise. The social impact of the crime e.g. Where it relates to offences relating to narcotics drugs or psychotropic substance, which have great impact not only on the health fabric but also on the social order and public interest, cannot be lost sight of and per se requires exemplary treatment. Any liberal attitude by imposing meager sentences of taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of such offence will be result wise counter productive in the long run and against social interest which needs to be cared for and strengthened by a string of difference inbuilt in the sentencing system. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
5. The incident pertains to the year 2006. The Convict is aged 17 about 55 years. She does not have any case against her under NDPS Act. She has remained in custody for more than 6 months. One of her child is a polio patient and totally dependent on her even for attending a call of nature. The proceedings reveal that she was released on interim bail on the ground of examination of her child as there was no other to look after his well being. The verification report was also called by the Court. Keeping in view the special circumstances and the pathetic condition of her child and the fact that after this incident she is not involved in trafficking of drug and has rehabilitated herself, I am not inclined to incarcarate the accused further.
6. Taking into consideration the totality of facts and the circumstances, antecedents and family background of the convict, I sentence the convict to undergo rigorous imprisonment for a period of six months and to pay fine of Rs. 30,000/ in default thereof to undergo simple imprisonment for a period of two months for offence punishable u/s 20(b)(ii) B of the NDPS Act. She is given benefit of section 428 Cr.P.C. The case property be confiscated to the State after the expiry of period of appeal or revision.
File be consigned to record room.
Announced in open Court 18 on this 25 day of May, 2010 th Sanjiv Jain Special Judge NDPS : New Delhi Patiala House : New Delhi 19