Delhi District Court
5 vs Bal Mukund & on 16 August, 2013
1
In the court of Dig Vinay Singh, Addl. Sessions Judge/Spl. Judge:
NDPS: Rohini Courts: Delhi
In the matter of:
S.C. no. 56/12
FIR no. 177/12
P.S. Crime Branch
U/S 18 NDPS Act 1985
State
Versus
Nar Singh Balai S/o Pyaraji Balai
R/o Village Shemli Shankar, P.S. Shyam Garh
District Mandsor, Madhya Pradesh
Date of receipt : 15-09-2012
Date of arguments : 16-08-2013
Date of announcement: 16-08-2013
JUDGMENT
1. The above named sole accused was sent up for trial with the case of prosecution that on 26.06.2012 he was apprehended at near Jahangir Puri Metro Station, G. T. Karnal Road, Delhi, at about 4.30 SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 1 of 27 2 PM, when he was possessing 12 Kg of Opium. The apprehension of accused was pursuant to a specific and by name secret information against him. The secret information was received by SI Sunil Jain. From the recovered contraband, samples were drawn and one of the samples was sent to the FSL which also confirmed the recovered substance to be Opium.
2. Accordingly, a charge U/s 18 of NDPS Act was framed against the accused, to which he pleaded not guilty and claimed trial.
3. In support of its case, prosecution examined total 10 witnesses.
3.1 Out of the 10 prosecution witnesses, PW-6 HC Rohtash; PW-9 SI Sunil Jain and; PW-10 Ct. Kheta Ram are the recovery witnesses. These three witnesses deposed that on 26.06.2012 a secret information was received by SI Sunil Jain at the office of Narcotics cell, Crime Branch, at about 2.00 PM, in which it was disclosed that two persons namely Balu Singh and Dalai Singh, who were residents of Shyam Garh, Madhya Pradesh were involved in supply of Opium and heroin in Delhi, Haryana and Punjab, after procuring it from M.P. and Rajasthan. The information also disclosed that one Nar Singh who was stooge of Balu Singh and Dalai Singh would come to supply Opium to one Joginder, on that day near the Jahangir Puri Metro Station, G.T.K. Road, between 4 to 5 PM. SI Sunil produced the SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 2 of 27 3 secret informer before Inspector Vivek Pathak (PW-8) at about 2.15 PM, who also enquired from the secret informer and on being satisfied, telephonically, conveyed the information to the ACP of Narcotics Branch. The ACP directed that appropriate action be taken, upon which SI Sunil reduced the secret information into writing vide DD no. 11, Ex.PW-3/A, at 2.30 PM and produced a true copy of the said DD to Inspector Vivek Pathak, who signed and forwarded it to the ACP concerned in compliance of Section 42 of NDPS Act. Thereafter, a raiding party comprising of PW-6 HC Rohtash; PW-9 SI Sunil Jain; PW-10 Ct. Kheta Ram and HC Yogesh was constituted. The raiding party went to the spot along with the secret informer in a government gypsy under DD no. 12 Ex.PW-9/A. On the way to the spot, SI Sunil Jain requested five passersby each to become witness in the raid at ISBT Kashmere Gate and at Burari chowk Traffic signal and also four persons were requested at the spot. None of the public persons agreed to become witness. At the spot, the members of the raiding team took position. At 4.25 PM, the accused was noticed when he came on foot towards Jahangir Puri Metro Station from the side of Jahangir Puri red light, and at that time he was carrying one white colour plastic gunny bag in his right hand. The accused was identified by the secret informer. Accused came and stopped at a distance of about 3-4 meters from the members of the raiding team. He kept the gunny bag on the road near his legs and stood there for SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 3 of 27 4 about 3-4 minutes while waiting for somebody. Thereafter, he lifted the gunny bag and started going back, and at that time he was apprehended. SI Sunil introduced himself and other members of raiding team to the accused. Accused was told about the secret information against him. Accused was also explained about his legal rights to be searched in presence of a Gazetted Officer or a Magistrate and that he can take search of the police team and their vehicle before his search was conducted. He was also explained the meaning of Gazetted Officer and Magistrate. A legal notice U/s 50 NDPS Act, Ex.PW-6/A, was prepared and served upon the accused by delivering its carbon copy. The accused refused to exercise his rights and his refusal, Ex.PW-6/E, was noted down on the original notice bearing his signatures. Thereafter, again 10-15 public persons, who had gathered at the spot, were requested to become witness but none agreed. On search of the gunny bag, one plastic container was found which was containing transparent polythene. Inside the polythene Opium was found. Small portion of opium was checked on the field testing kit which also confirmed it to be Opium. On measurement, the weight of Opium along with the container but without lid of container, came to be 12 Kg. Out of it, two samples of 50 gm each were separated and sealed in pullandas Mark A & B. The main contraband was also sealed in pullanda Mark C. FSL form was filled up. Seal of '3 CPS NB DELHI' was applied on all the three SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 4 of 27 5 pullandas and the FSL form. The case property and FSL form were taken into police possession vide seizure memo Ex.PW-6/B. Thereafter, rukka Ex.PW-9/B was prepared and the FIR was got registered through Ct. Kheta Ram (PW-10). Ct. Kheta Ram was also handed over all the three sealed parcels, the FSL form and carbon copy of seizure memo to be taken to the police station and to be handed over to the SHO of police station in compliance of Section 55 of the NDPS Act. Ct. Kheta Ram took those articles from the spot to the police station crime branch.
3.2 It is deposed by HC Rohtash (PW-6), SI Sunil Jain (PW-9), ASI Devender (PW-7), that ASI Devender reached the spot on getting assigned the further investigation of this case. At the spot, custody of the accused and all the documents prepared by SI Sunil were handed over to ASI Devender, who then prepared site plan Ex.PW-7/B and thereafter arrested the accused vide arrest memo Ex.PW-6/D. Personal search of the accused was conducted vide memo Ex.PW- 6/C, in which carbon copy of notice U/s 50 NDPS Act and Rs.700/- were recovered. Thereafter, the police team left the spot and reached police station Crime Branch where the personal search articles of accused were deposited in the malkhana.
3.3 SI Sunil Jain PW-9 and ASI Devender PW-7 also proved their respective reports U/s 57 NDPS Act qua seizure of contraband and SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 5 of 27 6 qua arrest of the accused as Ex.PW-3/C and Ex.PW-3/D, respectively.
3.4 Rest all the witnesses are more or less formal in nature.
3.5 PW-4 Inspector C. R. Meena, was the SHO of police station Crime Branch on the date of incident. Inspector C. R. Meena and Ct. Kheta Ram (PW-10), deposed that Ct. Kheta Ram handed over the sealed parcels, the FSL form and carbon copy of seizure memo to PW-4 and PW-4 affixed his seal of CRM on all the three parcels as well as the FSL form and thereafter enquired and noted down the FIR number on the pullandas and the documents. He also signed all of them.
3.6 Inspector C. R. Meena PW-4 and HC Jag Narain PW-5, deposed that thereafter HC Jag Narain who was working as malkhana moharrar in the police station was called in the room of SHO along with Register no. 19 and the case property was deposited in the malkhana vide entry Ex.PW-5/A, in Register no. 19, bearing signatures of the SHO.
3.7 HC Jag Narain PW-5 also deposed that personal search articles of the accused were deposited by ASI Devender on 27.6.2012 vide entry Ex.PW-5/B. He also proved sending of one of the sample pullanda bearing Mark A along with FSL form to FSL through HC SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 6 of 27 7 Laxman on 02.07.2012 vide RC Ex.PW-5/C, and that HC Laxman obtained and deposited an acknowledgment receipt Ex.PW-5/E. 3.8 PW-1 HC Laxman carried the sample pullanda with FSL form to FSL on 02.07.2012.
3.9 PW-2 HC Adal Singh was the duty officer who proved FIR Ex.PW-
2/B and endorsement on rukka Ex.PW-2/D. He also proved DD no. 24 & DD no. 27 regarding commencement and conclusion of registration of FIR on the computer as Ex.PW-2/A & 2/C, respectively.
3.10 PW-3 HC Om Prakash proved receipt of the report U/s 42 NDPS Act in the office of ACP, Narcotics Cell on 26.06.2012 vide entry in relevant register Ex.PW-3/B, and the fact that the ACP saw the report and signed it. The report U/s 42 NDPS Act, i.e. true copy of DD no. 11 is proved as Ex.PW-3/A. He also proved receipt of both the reports U/s 57 NDPs Act on 27.6.2012 as Ex.PW-3/C & 3/D vide entries in Register Ex.PW-3/E and the fact that the ACP saw and signed those two reports also.
3.11 PW-8 Inspector Vivek Pathak corroborated the testimony of SI Sunil Jain to the effect that secret informer was produced before him on the date of incident and that he enquired from the secret informer and on being satisfied spoke to the ACP concerned. He also deposed about SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 7 of 27 8 receipt of copy of secret information U/s 42 NDPS Act Ex.PW-3/A as well as the report U/s 57 NDPs Act given by SI Sunil Jain on 27.06.2012 as Ex.PW-3/C. He also proved receipt of report U/s 57 of NDPS Act given by ASI Devender on 27.06.2012 as Ex.PW-3/D. He deposed that he signed those three reports and forwarded them to the ACP, Narcotics Cell.
3.12 Suffice it to say here that PW-6, 7, 9 & 10 identified the accused in the court as the same person who was apprehended with contraband on the spot and PW-6, 9 & 10 also identified the case property in the court as Ex.P1 to P3. The carbon copy of notice U/s 50 NDPS Act recovered in the personal search of accused is proved as Ex.PW-6/A1.
4. On conclusion of prosecution evidence, all the incriminating evidence was put to the accused in his examination U/s 313 Cr. P. C., to which the accused generally denied the evidence against him and claimed that he has been falsely implicated in the case by planting contraband upon him. He claimed that he was not apprehended from the spot but was picked up from Karnal Bus Stand in Haryana along with one Shravan, but Shravan was allowed to go and he was implicated. He denied that any notice was given to him or any rights U/s 50 NDPS Act were explained to him. Instead he claimed that his signatures were obtained on blank papers which were converted into various SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 8 of 27 9 documents of this case.
4.1. Accused did not offer any reason as to why he would be falsely implicated in this case. Accused also did not opt to lead any evidence in his defence.
5. I have Ld. Prosecutor and Ld. Counsel for the accused.
6. Learned counsel for the accused firstly argued that there is non-
compliance of section 42 and section 57 of NDPS Act. He argues that PW-3 HC Om Prakash admitted that on these reports his signature does not exist and that those reports were not addressed to him. He also argues that, in absence of examination of the ACP concerned, sufficient compliance of section 42 and section 57 of NDPS Act has not been proved by the prosecution.
6.1. In my considered opinion the argument of learned counsel for the accused is without any force. No doubt the ACP, to whom those reports were addressed and who signed the reports, has not been examined in the present matter, but when PW-3 HC Om Prakash was examined he specifically deposed that he had put up the reports before the ACP who endorsed and signed them. In the cross examination of PW-3 there is no suggestion given by the accused that the reports do not contain signatures of the ACP or that signatures of ACP on the reports were forged. There is no suggestion SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 9 of 27 10 at all to PW-3 that the ACP did not see or sign those reports. There is no suggestion to PW-3 that the endorsement and the signatures of ACP on the reports were not done in his presence, particularly when PW-3 specifically deposed that those reports were endorsed and signed by the ACP in his presence. In such circumstances when the accused did not dispute signatures of the ACP on the reports, during cross examination of PW-3, the prosecution was within its rights to assume that the signatures of ACP on the reports were not denied by the accused. Had the accused disputed those signatures in the cross examination of PW-3 the prosecution would have got an opportunity to examine the ACP.
6.2. Even otherwise under section 42 and 57 of NDPS Act, all that is required is that the reports under those two provisions should be given to immediate superior officer, by an officer who takes down any information in writing under section 42, and by an officer seizing the contraband or arresting an accused under section 57 of NDPS Act. In the present matter the secret information was reduced to writing and the contraband was seized by PW-9 SI Sunil, and the accused was arrested by PW-7 ASI Devender Singh. Both these officers were subordinate to PW-8 Inspector Vivek Pathak. Both these witnesses deposed that they submitted their respective reports under section 42 and 57 of NDPS Act to PW-8 inspector Vivek Pathak who signed the SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 10 of 27 11 same and forwarded it to the ACP. As on the date when the reports were tendered by PW-9 & 7 to PW-8, both of them were subordinate police officers to PW-8. Thus the moment these two officers PW-7 & PW-9 tendered their respective reports to PW-8, sufficient compliance of section 42 and section 57 of NDPS Act was made. It is not in dispute in the present case that the reports were furnished within the stipulated periods under section 42 and section 57 of NDPS Act. Therefore this first contention of learned counsel for the accused has to be rejected in Toto.
7. It is next argued by learned counsel for the accused that there is non-
compliance of section 50 of NDPS Act as the meaning of words Magistrate and Gazetted officer was not explained to the accused and also because the accused was admittedly speaking in a different dialect which was a local dialect of the state of Madhya Pradesh.
7.1. There is no force in this argument also, for the simple reason that in the present case admittedly the contraband was not recovered from the person of accused and the contraband was recovered from a gunny bag carried by the accused in his hand. For that reason section 50 of NDPS Act is not applicable in the present matter. Even otherwise the prosecution witnesses have claimed that meaning of Gazetted officer and Magistrate was explained to the accused and also that though the accused was speaking in a different dialect but SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 11 of 27 12 whatever he spoke was clearly understandable.
8. It is next argued by learned counsel for the accused that there is non-
compliance of section 52 of NDPS Act also. He argues that the case property and the accused were not produced before the officer in charge of that nearest local police station within the jurisdiction of which the accused was arrested and the contraband was seized.
8.1. No doubt the accused and the case property was not produced before the officer in charge of the nearest local police station within the jurisdiction of which arrest and seizure was made in this case, but then all that section 52 of NDPS Act requires is that such an arrested person and the case property seized shall be forwarded without unnecessary delay to the officer-in-charge of the nearest police station. Arrest in this case was made within the jurisdiction of Delhi. In Delhi, crime branch has a different police station which has a separate officer-in-charge also. The police station Crime Branch has jurisdiction all over Delhi. The prosecution witnesses have deposed that as soon as the procedural aspect qua the seizing of contraband was completed and Rukka was prepared, the case property was sent to the officer-in-charge of police station crime branch. Inspector C. R. Meena, the SHO of police station crime branch, has been examined in this case as PW-4. Inspector C. R. Meena as well as PW 10 Constable Kheta Ram, both deposed that the case property was SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 12 of 27 13 taken to the officer-in-charge of the police station crime branch by PW-4, without any unnecessary delay. Similarly, after the accused was arrested he was taken to police station crime branch and from there he was also taken to the narcotics cell where he was produced before inspector Vivek Pathak (PW-8). In my considered opinion, this is sufficient compliance of section 52 of NDPS Act and it was not necessary for the accused to be produced before the local police station only. Even otherwise non-compliance of section 52 of NDPS Act at the most can be a procedural irregularity and not an illegality which can be termed as fatal to the case of prosecution. In my considered opinion this argument also has to be rejected.
9. It is next argued by learned counsel for the accused that there is delay in sending of sample for analysis to the laboratory which should be held to be fatal to the case of prosecution. He argues that the sample should have been sent to the laboratory for its examination within 72 hours of seizure, whereas, in the present case the sample was sent after a delay of seven days.
9.1. Again I do not find any force in this contention of accused. No doubt that as per guidelines issued by Narcotics Control Bureau sample should have been sent to the laboratory within 72 hours, whereas, in this case it was sent after a gap of seven days from the date of seizure of contraband. Contraband in this case was seized on 26th of SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 13 of 27 14 June 2012 whereas the sample was sent on 2nd July 2012. But mere delay in sending the sample is not fatal to the case of prosecution. In the testimony of PW-5 HC Jag Narain and PW-1 HC Laxman it has been specifically deposed that when the sample parcel was taken from the malkhana to the laboratory it was duly sealed and nobody tampered with it. It is also deposed by PW-5, the Malkhana Moharrar that the case property remained intact throughout the time it remained in the Malkhana. It may be mentioned here that in the testimony of PW-1 HC Laxman there is a typographical error in the seal impression where it is typed as '3 BPS NB Delhi' instead of '3 CPS NB Delhi'. The sample parcel was also accompanied with an FSL form containing same specimen seals, when taken to the laboratory. Perusal of the FSL result would reveal that when the sample was received and tested in the laboratory it was duly sealed and the seals were also tallied by the concerned examiner with the specimen seals on the FSL form. In such circumstances when the seals on the parcel were intact and there is no evidence of tampering with the case property in any manner, I do not find any reason as to why delay of few days in sending the sample to the laboratory must be held to be fatal to the case of prosecution. On examination of the entire material, it is clear that there is sufficient evidence produced by the prosecution regarding the completion of link evidence. It is proved beyond reasonable doubt that the seals SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 14 of 27 15 were intact till the parcel reached the FSL. Therefore, the delay in sending the sample parcel to the office of the chemical examiner pales into insignificance. Mere delay in sending the sample to the office of the chemical examiner would not be sufficient to conclude that the sample has been tampered with. Delay was unintentional. For the said reason the argument of the accused on this point also has to be rejected.
9.2. Hon'ble Supreme Court had an occasion to deal with a similar issue, in Balbir Kaur v. State of Punjab [(2009) 15 SCC 795 : (2010) 3 SCC (Cri) 997] . The Court made following observations: (SCC p. 803, Para 24) "24. As far as delay in sending the sample is concerned, we find the said contention untenable in law. Reference in this regard may be made to the decision of this Court in Hardip Singh case [Hardip Singh v. State of Punjab, (2008) 8 SCC 557 :
(2008) 3 SCC (Cri) 580] wherein there was a gap of 40 days between seizure and sending the sample to the chemical examiner. Despite the said fact the court held that in view of cogent evidence that Opium was seized from the appellant and the seals put on the sample were intact till it was handed over to the chemical examiner, delay itself is not fatal to the prosecution case."
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10. It is next argued by learned counsel for the accused that there is non-
compliance of the standing instruction no. 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau, New Delhi, as the signatures of accused and witnesses were not obtained on the parcels. He also argues that the FSL form was not kept inside any sealed envelope along with the sample parcel and signatures of accused were not obtained on any such parcel. In this regard, he placed reliance upon the case of Union of India Vs. Bal Mukund & Ors., 2009 Crl. L. J. 2407.
10.1. Clause 1.9 & 1.10 of the Instructions reads as under :-
"1.9 It needs no emphasis that all samples must be drawn and sealed in the presence of the accused, Panchnama witnesses and seizing officer and all of them shall be required to put their signatures on each sample. The official seal of the seizing officer should also be affixed. If the person from whose custody the drugs have been recovered, wants to put his own seal on the sample, the same may be allowed on both the original and the; duplicate of each of the samples.
1.10 The sample in duplicate should be kept in heat sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in paper envelop which may be sealed properly. Such SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 16 of 27 17 sealed envelope may be marked as original and duplicate. Both the envelops should also bear the No. of the package(s) container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked "Secret-Drug sample/Test Memo" to be sent to the chemical laboratory."
10.2. Non-compliance of standing instructions by itself does not vitiate trial and it is only an irregularity and not illegality.
11. It is next argued by learned counsel for the accused that there is no investigation done by the investigating officer as to the source of contraband, destination of contraband, and as to Balu Singh and Daley Singh.
11.1. The investigating officer claimed that he did investigate those aspects but could not find any evidence. Even if it is assumed that the investigating officer did not investigate those aspects, it cannot be a ground to acquit the accused. The offence committed by the accused is an independent offence. Under the NDPS Act possession of opium is itself a punishable offence u/s 18 of the Act.
12. It is also claimed that PW-6 HC Rohtash faltered as to the quantity of SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 17 of 27 18 the Opium recovered and as to the weight of the samples drawn. It is argued that PW 6 HC Rohtash initially deposed that 12 kg of Opium was recovered from the accused and out of it two samples of 50 gms were separated as samples, but thereafter he deposed that the recovered opium was 1200 g and not 12 kg and that the samples drawn were of 500 g each and not 50 g each.
12.1. PW6 HC Rohtash initially correctly deposed that the weight of the recovered opium was found to be 12 kg and out of it two samples of 50 g each were separated. But then it appears that the witness got confused and changed his stand stating that the recovered opium was 1200 g and the samples drawn were of 500 g each. However before commencement of cross examination of this witness learned prosecutor for the state, with the permission of court asked some leading questions to this witness and the witness deposed that the correct quantity of the recovered opium was 12 kg and not 1200 g. He also corrected himself by deposing that the two samples drawn out of the recovered opium was 50 g each and not 500 g each. Subsequently, when this witness was cross examined by the accused no question was put to him as to the weight of opium or the weight of samples drawn. The other two recovery witnesses PW-9 & PW-10, both clearly and specifically deposed that the weight of the recovered opium 12 kg and the samples were 50 g each. Also in the FSL result SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 18 of 27 19 the weight of the sample is clearly mentioned as 53.42 g which is inclusive of the weight of polyethylene and the rubber band. The oral testimony of PW-9 & PW-10 also finds support from the seizure memo exhibit PW-6/B which also clearly mentions the weight of the recovered material. PW-6 specifically deposed that this seizure memo was the same which was prepared at the spot and which he signed as a witness. In such circumstances slight variation in the testimony of PW-6 as to the weight of contraband, which appears to be a result of confusion in the mind of PW-6 and which was later on corrected by him, cannot be given any undue importance.
13. It is next argued by learned counsel for the accused that PW-6 also faltered as to the impression of the seal applied on the parcels at the spot.
13.1. Perusal of testimony of PW-6 would reveal that in his examination in chief he deposed that PW-9 applied his seal of '3 CSP Narcotics Branch Delhi' but again in the answer to the leading question asked by the learned prosecutor for the state, the witness specifically agreed that the seal which was applied was '3 CPS NB Delhi'. It appears that this witness deposed full form of the abbreviated letters 'NB' as 'Narcotics Branch'. So factually speaking there is no discrepancy in the deposition about the impression of seal. When the case property was produced in the testimony of this witness and it SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 19 of 27 20 was shown to this witness the impression on the case property was indeed of '3 CPS NB Delhi'. No question was asked by the accused to this witness that the parcels were not bearing the same seals which were applied on them on the date of incident. No question was put to this witness by the accused to the effect that the seal on the parcels produced in the court were changed from what they were applied on the date of incident. PW-9 & PW-10, the other two recovery witnesses clearly deposed that the seal applied on the parcels was '3 CPS NB Delhi'. The testimony of the recovery witnesses finds support from the testimony of the SHO PW-4 who also deposed that when he received the parcels in the police station, brought to him by PW-10, it was having the seal of '3 CPS NB Delhi'. This testimony is also supported by the testimony of the Malkhana Moharrar, HC Jag Narayan as also the relevant entry made in the Malkhana register which is proved as exhibit PW 5/A, which clearly mentions the seal impression existing on the parcels when the parcels were deposited in the Malkhana. FSL form was also filled up and deposited in the Malkhana with the parcels, and when the sample parcel was received in the laboratory it was found to be containing the same seals as existing on the FSL form. In such circumstances no undue weightage can be given to this slight discrepancy as to the impression of seal in the testimony of PW-6. Accordingly even this contention of the accused is rejected.
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14. It is next argued by the learned counsel for the accused that there are other contradictions in the testimony of prosecution witnesses as to where exactly the documents of this case were prepared at the spot; in whose custody the accused remained at the spot; whether the accused was personally searched before the bag or not and; as to the sequence of and exact time of preparation of documents at the spot.
14.1. Perusal of the testimony of the three recovery witnesses, i.e. the testimony of PW-6, PW-9 and PW-10, would reveal that although there are certain contradictions in the testimony of these witnesses, but in my considered opinion these contradictions are not material enough to create doubt as to the truthfulness or genuineness of the prosecution witnesses or the prosecution case. All the prosecution witnesses have consistently deposed that the accused was found in possession of one gunny bag, on the date of incident at the spot, which was containing opium. All of them consistently deposed as to the apprehension and recovery of opium from the accused at the spot. Their testimonies, on the crucial point of apprehension of accused and recovery of opium from the possession of accused at the spot is consistent and corroborating each other. Once testimony of these witnesses materially corroborates each other, and is inspiring, I do not see any justification as to why some trivial SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 21 of 27 22 discrepancies must be read in favour of the accused. In fact the trivial contradictions, appearing in the testimony of these witnesses may be a result of power of observation, and power of retention of witnesses, which varies from person to person and no two witnesses can depose absolutely identically.
14.2. Though, the accused in his statement, claimed that he has been falsely implicated in this case, but no reason whatsoever came forth from the accused as to why would he be falsely implicated by the police. He does not have any previous enmity with any of the witnesses. No such reason has been put forth either in the cross examination of prosecution witnesses or in the statement of accused. This court does not find it believable that the accused was falsely implicated by the police, without any rhyme or reason.
14.3. In his statement U/s 313 Cr. P. C. the accused took a plea that he was picked up from Karnal Bus stand and then was brought to Delhi. No such suggestion was put to the witnesses in their cross examination. It may be mentioned that such a version taken up by an accused for the first time in his statement U/s 313 Cr.P.C, cannot be given any undue weightage for the simple reason that in the statement of an accused, the prosecution does not get any opportunity to cross examine the accused on that point. The accused in such circumstances either ought to cross examine the prosecution SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 22 of 27 23 witnesses on the points which are taken up in the statement U/s 313 Cr.P.C or the accused should at least enter the witness box so that the prosecution gets an opportunity to confront the accused.
14.4. When the testimony of prosecution witnesses is reliable and trustworthy, non-joining of independent witnesses pales into insignificance. Law does not say that the testimony of police witnesses must always be disbelieved.
15. The recovery witnesses have consistently deposed that the accused was apprehended at the spot and total 12 kg of Opium was recovered from the accused which was seized after drawing samples. They have deposed consistently that FSL form was filled up at the spot. Other prosecution witnesses have completed the chain of deposition of case property in the Malkhana and from Malkhana the sample being taken to the FSL. There is no evidence of tampering with the case property in any manner and there is no plausible reason as to why the accused would be falsely implicated in the case. Rather the testimony of PW-6, PW-9 & PW-10 is believable and trustworthy in this regard. The testimony of other prosecution witnesses is also in lines to the case of prosecution. PW- 3, 8 & 9 have proved compliance of Section 42 & 57 of NDPS Act within the stipulated period.
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16. In the light of evidence on record, the prosecution has succeeded in proving its case beyond reasonable doubt that the accused was found in possession of 12 kg of Opium on the date, time and place mentioned above.
17. The question however, is as to whether the recovered quantity was small, intermediate or commercial quantity?
17.1. The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act 9 of 2001) (w.e.f. 2-10-2001), rationalised the punishment and provides for sentences linked to the quantity of narcotic drugs or psychotropic substances recovered. The sentence structure has changed. "Small quantity" and "commercial quantity" are defined in Section 2(xxiii-a) and Section 2(vii-a) of the Act. The Statement of Objects and Reasons of the amending Act of 2001 indicates that the intention of the legislature was to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment.
17.2. Section 18 of the NDPS Act, provides for proportionate sentence for possessing small, intermediate and commercial quantities of offending material. As per Entry 92 of the Notification dated 19-10- SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 24 of 27 25 2001, which deals with Opium, small quantity has been mentioned as 25 gm. and commercial quantity has been mentioned as 2.5 kg.
17.3. In the present case the relevant part of the FSL result Ex PW7/D, reads as under:
"On Chemical, TLC & HPTLC examination, (i) Exhibit 'A' found to contain 'Morphine', 'Codeine', 'Thebaine', 'Narcotine' & 'Papaverine' which are main constituents of 'opium'.
(ii) However, the percentage of 'Morphine' in exhibit 'A' was found to be 5.942 %."
17.4. Under Section 2(xv) of the NDPS Act, "opium" is defined as:
"2. (xv) (a) the coagulated juice of the opium poppy; and
(b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 per cent of morphine;"
17.5. In case the offending material falls in clause (a) then the proviso to Section 2(xv) would not apply. The proviso would apply only in case the contraband recovered is in the form of a mixture which falls in clause (b) thereof. In case of pure opium falling under clause (a) of Section 2(xv), determination of the quantity of morphine is not required. If it is opium as defined in clause (a) of Section 2(xv) then SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 25 of 27 26 the percentage of morphine contents would be totally irrelevant. It is only if the offending substance is found in the form of a mixture as specified in clause (b) of Section 2(xv) of the NDPS Act, that the quantity of morphine contents becomes relevant. Entry 92 is exclusively applicable for ascertaining whether the quantity of opium falls within the category of small quantity or commercial quantity. In the present case, the material recovered from the accused is opium. The present case falls under clause (a) of Section 2(xv) of the NDPS Act and clause (b) thereof is not attracted for the simple reason that the substance recovered was opium in the form of coagulated juice of the opium poppy. It was not a mixture of opium with any other neutral substance. There was no preparation to produce any new substance from the said coagulated juice. Determination of the contents of morphine in the opium becomes totally irrelevant for the purpose of deciding whether the substance would be a small or commercial quantity. The entire substance has to be considered to be opium as the material recovered was not a mixture and the case falls squarely under Entry 92. Opium would contain some morphine which should not be less than the prescribed quantity; however, the percentage of morphine is not a decisive factor for determination of the quantum of punishment, as the opium is to be dealt with under a distinct and separate entry from that of morphine.
SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 26 of 27 27 17.6. Even if the weight of plastic container, with which the opium was measured at the spot, is excluded still the quantity possessed by the accused was way beyond the quantity prescribed as commercial quantity.
18. Thus the accused being in possession of commercial quantity of opium has violated the provisions of Section 8 of the NDPS Act and is liable to be convicted under Section 18(b) of the NDPS Act. In view of above discussion the accused is found guilty and convicted for offence under section 18 (b) of NDPS Act.
Announced in open Court on 16th August, 2013.
Dig Vinay Singh ASJ/Special Judge (NDPS) Rohini Courts : Delhi SC no. 56/12 FIR no. 177/12 Dtd 16-08-2013 Pg.. 27 of 27