Delhi District Court
State vs (1)Bhairon Lal on 31 July, 2009
-::1::- FIR No. 78/04
PS: Narcotics Branch
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN
ADDITIONAL SESSIONS JUDGE:SPECIAL JUDGE: NDPS:
TIS HAZARI COURTS:(WEST) DELHI
FIR no. 78/04
Police station: Narcotics Branch
U/s 18/25/29 NDPS Act
State V/s (1)Bhairon Lal
(2) Satya Narain
1.Session Case no. : 2/N/05
2.Name of the accused : (1) Bhairon Lal S/o Sh. Nanaji
R/o Village Alod, Police Station
Dungla, District Chittorgarh,
Rajasthan.
(2)Satya Narain S/o Sh.Mohan
Lal R/o Village & P.O and PS
Dungla, District Chittorgarh,
Rajasthan
3.Date of commission of offence 11/10/04
4.Arguments concluded on 28/7/2009
5. Date of Judgment 31/7/2009
6. Date of final order 31/7/2009
JUDGMENT
1) According to the prosecution case on 11/10/2004 at about 9.30A.M a secret informer gave secret information to HC Harcharan Singh and Ct. Kheta Ram of the Police Station Narcotics Branch about one person Bharion Lal R/o District Chittorgarh, Rajasthan indulged in supply of opium in Delhi, -::2::- FIR No. 78/04 PS: Narcotics Branch Haryana and Punjab would come from Rajasthan for going to Haryana via Mukarba Chowk, G.T. Karnal Road in a Sumo vehicle no.HM-12BA-6903. HC Harcharan Singh informed SI Kuldeep about the said information who verified the same from the secret informer and thereafter informed the senior officer. SI Kuldeep Singh organised a raiding party and left the Police Station at 10.20A.M with the raiding party members and the informer in government vehicle no. DL 1V 3570. At about 11.30 A.M the raiding party reached at Mukarba Chowk, G.T. Karnal Road. While on the way SI Kuldeep Singh asked three women and two male persons at Raj Ghat bus stand, two Water Sellers and three passers-by at Burari Chowk and 8/10 passers-by and two Banana Sellers at Mukarba Chowk to join the raiding party but none of them agreed and went away showing their personal difficulty without disclosing their names and addresses. The members of raiding party were briefed and asked to take their position. At about 12.05 P.M a Sumo Vehicle bearing registration no. MH 12 BA 6903 came from Mukarba Chowk side and was stopped and two persons were sitting on the front seat, one was driving the Sumo, SI Kuldeep made formal enquiry and driver of the vehicle disclosed his name Satya Narain and the person sitting on his left -::3::- FIR No. 78/04 PS: Narcotics Branch side told his name Bharion Lal. SI Kuldeep Singh after disclosing his identity and about the raiding party, informed both the accused Bharion Lal and Satya Narain about their being indulged in sale of opium in Delhi, Haryana and Punjab and further informed that huge quantity of opium was possible to be recovered from their possession and for that purpose a search was to be conducted. Both the accused persons were given notice u/s 50 NDPS Act and both of them refused to be searched in the presence of a Gazetted officer.
2) SI Kuldeep Singh before conducting further proceedings, then asked two cyclists and three passers-by to join the proceedings but no one agreed and went away showing their personal difficulty without disclosing their names and addresses. SI Kuldeep Singh then conducted formal search of both the accused and the search of the Sumo vehicle and one off-white plastic container was recovered from the vehicle which was kept by accused Bharion Lal. On removing its lid, it was found containing sticky substance of black colour which on being tested on field testing kit found to be "opium" and the said container was given mark-A and on weighing it found to be containing 14 Kg opium, out of which two samples of 50 gm each were taken and -::4::- FIR No. 78/04 PS: Narcotics Branch were given mark-A and mark-A2. On further search another five off-white containers were also found in the said vehicle on its rear seat and were given marks as mark- B, C, D, E and F and on weighing same were found containing 10 kg "opium" in mark-B and 14 kg each in container mark- C, D, E & F. Out of each container sample of 50 gm were taken out and were given mark-B1, B2, C1, C2, D1, D2 E1, E2, F1, F2. Each sample parcels and parcels mark A to F were sealed with the seal of 2BPS NB, Delhi. Seal after use handed over to HC Harcharan Singh. FSL-form was filled up and the contraband was taken into police possession. SI Kuldeep Singh prepared a rukka and gave the same to Ct. Kheta Ram who went to the Police Station for registration of the case. The case property was handed over to HC Harcharan Singh for taking the same to SHO, Police Station Narcotics Branch. At about 3.30 PM Ct. Kheta Ram and HC Harjit left for Police Station in the government vehicle driven by Ct. Tavender Singh.
3) The further investigation was carried out by SI Udaivir Singh who reached to the spot at about 4.30 P.M in the same government vehicle and SI Kuldeep Singh produced both the accused persons to him and handed over all the relevant documents to him. SI Udaivir Singh seized the Sumo vehicle, -::5::- FIR No. 78/04 PS: Narcotics Branch prepared the site plan at the instance of SI Kuldeep Singh, recorded statement of the witnesses, interrogated the accused persons and formally arrested them. After completing the proceedings on the spot at about 10.00 P.M the police party left the spot and reached to the Police Station along with Sumo vehicle and accused persons. The samples were sent to FSL on 21/10/2004 vide Road Certificate no. 193/21 through Ct. Praveen Kumar. After completion of the investigation the chargesheet was filed .
4) On 11/5/2005 accused Bharion Lal was charged u/s 18 of NDPS Act for being in unlawful possession of 80 Kg "opium". The accused Satya Narain was charged u/s 25 of NDPS Act for using his TATA Sumo vehicle for the purpose of carrying "opium" by co-accused Bharion Lal. Both accused persons pleaded not guilty and claimed trial.
5) In support of its case prosecution has examined in total 10 witnesses.
6) The brief discussion of these witnesses is as under:-
PW1 HC Bhagwat Dayal has recorded the FIR Ex. PW1/B. He had also recorded the DD no. 33 at 4.45 P.M regarding closing of the FIR same was proved as Ex. PW1/C, and proved DD no.31 with -::6::- FIR No. 78/04 PS: Narcotics Branch regard to the departure of the IO as Ex. PW1/A. He further deposed that the further investigation was handed over to SI Udaivir Singh by the orders of the SHO and he made the endorsement on the rukka Ex. PW1/D. In his cross-examination by Ld defence counsel he has stated that information regarding recovery of any contraband in contravention of NDPS Act is to be mentioned in register no. 2 i.e Daily dairy register and on receiving such information at 4.30 PM he has made the entry in daily dairy register vide DD no. 31.
PW2 HC Jagat Kumar was posted as MHC(M) on 11/10/2004 at Police Station Narcotics Branch and deposed that at about 5.15 P.M Inspector P.S Hooda, SHO had deposited with him carbon copy of the seizure memo, 12 envelop parcels marked A1,A2,B1, B2, C1, C2, D1, D2, E1, E2, F1 and F2 duly sealed with three seals of 2APS NB Delhi on each parcels and one seal of 1SHO NBR DELHI on each parcel. The SHO further deposited with him 6 sealed parcels in plastic Kattas duly sealed with the above mentioned seals.
The FSL-form was also deposited with him and he had recorded the entry at serial no. 464 in the malkhana register. He further deposed that during night at about 11.05 P.M SI Udaivir Singh had deposited with him personal search articles alongwith carbon copies of -::7::- FIR No. 78/04 PS: Narcotics Branch personal search memos of accused persons and also a carbon copy of seizure memo of TATA Sumo no. MH 12 B A 6903 alongwith said vehicle and its key. The entry of the said deposits was recorded below the entry no. 464 at about 11.15 P.M and the said entry was signed by Inspector P.S. Hooda, SHO and SI Udaivir Singh. He further deposed that on 21/10/2004 the sample parcels in intact position were sent to FSL office through Ct. Praveen Kumar vide RC no. 193/21 and the relevant entry in column no. 8 against serial no.464 was made in the malkhana register. He has proved the photocopy of entry at serial no. 464 running into three pages as Ex.PW2/A and as also proved the carbon copy of the RC no. 193/21 as Ex. PW2/B. PW3 Ct. Praveen has taken the sample parcels with seals intact to FSL, Rohini on 21/10/2004 vide RC no. 193/21. He has deposited the same in the same condition with the FSL and so long the pullandas and the FSL-Form remained in his possession, the same remained intact and were not tampered with.
PW4 Kheta Ram is the material eye witness along with PW8 Harcharan Singh and PW10 SI Kuldeep Singh. PW4 Kheta Ram has fully supported the prosecution case with regard to receiving of secret information by HC Harcharan Singh about the accused -::8::- FIR No. 78/04 PS: Narcotics Branch indulged in supply of Opium. He further deposed that a raiding party was organised and at about 12.05 P.M a Sumo Vehicle bearing registration no. MH 12 B A 6903 came from Mukarba Chowk side and was stopped and two persons were sitting on the front seat, one was driving the Sumo, SI Kuldeep made formal enquiry and driver of the vehicle disclosed his name Satya Narain and the person sitting on his left side told his name Bharion Lal. SI Kuldeep Singh after disclosing his identity and about the raiding party, informed both the accused Bharion Lal and Satya Narain about their being indulged in sale of opium in Delhi, Haryana and Punjab and further informed that huge quantity of opium was possible to be recovered from their possession and for that purpose a search was to be conducted. Both the accused persons were given notice u/s 50 NDPS Act and both of them refused to be searched in the presence of a Gazetted officer. SI Kuldeep Singh served the notice u/s 50 NDPS Act Ex. PW4/A and reported refusal of the accused as Ex. PW4/B. On search of the accused Bhairon Lal one off-white colour plastic diba (box) was recovered from his hand. The substance in the box so recovered was tested on field testing kit which come out to be Opium and on weighing found to be 14 kg including plastic. Two sample of 50 gm were taken as mark-A1 and A2 and the plastic diba -::9::- FIR No. 78/04 PS: Narcotics Branch was given mark-A. Five more similar boxes i.e plastic dibas were recovered from the middle seat of vehicle and same were given mark- B, C, D, E, F and on checking were found to be contained opium. On weighing the weight of diba mark-B was found 10 kg and weight of remaining boxes i.e CDEF were found to be 14 kg each.
Two sample from each box were drawn and were given mark-B1 B2, C1 C2, D1 D2, E1 E2 and F1 F2. All the sample parcels and plastic dibas mentioned above were sealed by SI Kuldeep Singh who has also filled up the FSL-form and a seal after use was given HC Harcharan Singh.
He further deposed that SI Kuldeep Singh thereafter served a notice u/s 50 NDPS act upon accused Satya Narain as Ex.PW4/D who has also refused to be searched in the presence of Gazetted officer and his refusal was recorded as Ex. PW4/E. No contraband was recovered from accused Satya Narain and a Memo in that regard Ex. PW4/F was prepared. The sealed property alongwith sample parcels and rukka was sent to Police Station and produced before SHO. He has identified the six plastic containers containing Opium which were given mark- A to F as Ex. P1 to P6. The remnants of the samples were identified as P7 to P12. The vehicle in which contraband was being transported was identified as Ex. P13. -::10::- FIR No. 78/04
PS: Narcotics Branch In his cross-examination he has stated that SI Kuldeep Singh had got down at Raj Ghat from the vehicle and had asked persons present there to join the raid.
PW8 HC Harcharan Singh is another witness of recovery who has fully supported the prosecution case and corroborated the deposition of PW4 Kheta Ram on all material points. He has also stated that while on the way SI Kuldeep Singh asked three women and two male persons at Raj Ghat bus stand, two water sellers and three passers-by at Burari Chowk and 8/10 passers-by and two banana sellers to join the raiding party at Mukarba Chowk. He further deposed that after the recovery of contraband before proceeding further, two cyclists and three passers-by were asked to join the proceeding but none agreed and showing their personal difficulty. He has proved the seizure memo of the vehicle as Ex. PW8/A, disclosure statement of accused Bhaion Lal as Ex.PW8/B, arrest memo of the accused as Ex. PW8/C, memo of personal search of the accused as Ex PW8/D; disclosure statement of accused Satya Narain as Ex. PW8/E, arrest memo of the accused Ex. PW8/F and his personal search memo Ex. PW8/G. He further deposed that on 21/10/2004 he has returned the official seal 2APS NB DELHI to SI Kuldeep Singh . He has identified the vehicle as Ex. P13 stating that it -::11::- FIR No. 78/04 PS: Narcotics Branch was same which was recovered from the accused on the spot on the date of incident.
In his cross-examination by Ld defence counsel he has stated that he handed over the seal to SI Kuldeep Singh on 21/10/2004 at about 5.00-6.00 PM in the Police Station.
PW9 SI Kuldeep Singh is 1st Investigating Officer who has also corroborated the deposition of PW4 Ct. Khetaram and PW8 HC Harcharan Singh on all material points regarding apprehending of the accused persons and recovery of the contraband from their possession. He has also uniformly deposed alongwith other recovery witnesses on the point of investigation carried out by him on the spot. In addition, he has deposed that on the way at bus stop Raj Ghat he requested three ladies and two men waiting their to join the raid; at Burari chowk he asked two vendors of water trolley and three passers-by to join the raid; at Mukarba chowk bus stand he asked 8- 10 persons and two vendors to join the raid; all those people refused and went away without disclosing their names and addresses. He further deposed that after the apprehending of the accused persons and before taking their search, he asked two cyclists and a passer-by to join the proceedings but they had refused. He further deposed that after seizing the recovered contraband and keeping the same in -::12::- FIR No. 78/04 PS: Narcotics Branch pullandas and thereafter affixing the seals on the pullandas, he had prepared the rukka Ex. PW9/B. PW10 Inspector Udaivir Singh is the 2nd Investigating Officer who had reached on the spot at about 5.30 PM; after reaching there he has seized the vehicle (TATA SUMO) used in the crime vide memo Ex. PW8/A; prepared the site plan Ex. PW8/H at the instance of SI Kuldeep Singh; he has formally arrested the accused persons; he has also sent the 6 parcels mark- A, B, C, D, E &F alongwith form-FSL duly sealed with the seal of 2A PS NB DELHI and 1 SHO NBR DELHI through Ct. Praveen for depositing to the FSL, Rohini vide Road Certificate no. 193/21.
PW5 HC Karunakaran Nair has proved the report u/s 57 NDPS Act as Ex. PW5/A and Ex. PW5/B stating that same was received in the office of DCP, Narcotics on 12/10/2004 and were given serial no. 2187 and 2188 in the diary register copy of which is proved as Ex. PW5/C. PW6 is Inspector P.S. Hooda who was working as SHO, Police Station Narcotics on 11/10/2004 and deposed that at about 9.45 AM SI Kuldeep Singh had produced a secret informer before him . The secret information received by him was communicated to the ACP Sh. Mehar Singh in his office on telephone. He further -::13::- FIR No. 78/04 PS: Narcotics Branch stated that the secret information was recorded by SI Kuldeep Singh as DD no. 17 at 10.00 AM. The copy of the same Ex. PW6/A. He has directed SI Kuldeep Singh to conduct a raid. At about 4.35PM Ct. Khetaram came to his office and produced copy of seizure memo, one form-FSL, 12 envelop parcels marked as mark- A1, A2, B1, B2, C1, C2, D1, D2, E1, E2, F1 F2 and 6 plastic katta (sack) parcels marked as mark- A, B, C, D, E & F. The above envelop parcels and the above plastic kattas were having seals of 2A PS NB DELHI. He had scribed FIR no. 78/04 on the FSL-form and all the above mentioned parcels and also affixed his official seal 1SHO NBR DELHI. He had deposited the above case property with the MHC(M) HC Jagat Kumar vide entry Ex. PW2/A in the register no. 19. DD no. 32 Ex. PW6/B was lodged at 5.30 PM regarding depositing the case property in the Malkhana. He further deposed that at about 11.00 PM SI Udaivir Singh produced the accused Bhairon Lal and Satya Narain before him and after satisfying their arrest he has directed SI Udaivir Singh to take further necessary action. He had also forwarded the report u/s 57 NDPS Act Ex. PW5/A and PW5/B to the ACP.
PW7 HC Joginder Singh was working as MHC(M) on 10/3/2005 and has proved the deposit of the remnants of the sample -::14::- FIR No. 78/04 PS: Narcotics Branch in the malkhana alongwith FSL result vide entry Ex. PW7/A by Ct.Daya Chand.
7) Both the accused were examined u/s 313 CrPC in which they had denied the allegations stating that they were innocent and were falsely arrested from Chittorgarh, Rajasthan; that no contraband was recovered from their possession. Accused Satya Narain has stated that he was not driving the vehicle in question at the alleged date, time and place. Both accused desired to lead evidence in defence but no evidence was led by them as they did not intend to lead evidence in defence and accordingly their defence evidence was closed.
8) I have heard the Ld counsel Shri Mukesh Kalia advocate for accused persons who has submitted written arguments in support of his oral arguments. He has vehementally argued that prosecution has failed to prove its case against the accused persons beyond reasonable doubt because of the following reasons:-
9) Firstly, It is admitted case of the prosecution that the place where the information was received and the places following on the way to the spot and even on the spot, the independent witnesses from the public , residential houses, shops and offices -::15::- FIR No. 78/04 PS: Narcotics Branch were available but no efforts have been made to associate independent witnesses. The efforts made by the Investigating Officer to associate independent witnesses were not bona-fide and failure in that regard has cast a serious doubt in the prosecution story; the entire prosecution evidence has to be scrutinized with great deal of care and caution. Reliance has been placed upon Mohd Raffique Vs. The State 2000 Criminal Law Journal 2401, wherein it was held that when the secret information was received at 9.35 AM and the appellant was apprehended at about 10.00 AM, there was sufficient time to procure attendance of public witnesses to witness the search and seizure and the place being thickly populated area, therefore, it was inconceivable that no one from the public had come to the spot to witness the alleged search and seizure operation; having regard the area and the place of the search and seizure, it appears that public witnesses were available but serious attempt was not made by Investigating Officer to associate them before searching the appellant. It was further held that where the error, irregularity and illegality touching the procedure committed by the authorised officer is so patent and loudly obtrusive and that it leaves his evidence to be hazardous to place implicit reliance on -::16::- FIR No. 78/04 PS: Narcotics Branch it, the court is required, in these circumstances to look for corroboration of the testimony of police officials from independent sources. Similarly, the case of Pradeep Kumar Vs. State, 1997 IV AD (DELHI) 666, alongwith Naveen Vs. State of Rajasthan, 1991 (1) Crimes 548 (Rajasthan High Court) has also been relied in support of this contention.
10) Secondly, the prosecution has failed to rule out the possibility of tampering with the parcels and the case property because there was deliberate and unexplained delay in sending the parcels to the Laboratory as the same were allegedly deposited in the malkhana on 11/10/2004 but had been sent to the CFSL on 21/10/2004 after a period of about 10 days; since no independent witness was associated and the seals used by the IO was given to a Subordinate police official of the same Police Station , the SHO retained his own seal , the seals being in the possession of the same police officials, the possibility of tempering with the parcels cannot be ruled out.
11) Thirdly, the tempering of the seal allegedly used in sealing the samples and the case property is not ruled out because the IO allegedly used the seal with the impression of 2APS NB DELHI and the SHO has used the seal impression of 1SHO NBR DELHI -::17::- FIR No. 78/04 PS: Narcotics Branch but the CFSL report would reveal that the parcels received in the FSL were having the seals of description PS NB 2A DELHI and SHO NBR 1DELHI. It is argued that it is evident from the report of the FSL that the parcels which were allegedly received there were not having the same seal impressions with which the parcels were allegedly sealed at the time of recovery. Reliance has been placed upon the case of Peter Robertson Cowan Vs. State 1987 C.C cases 241 (High Court of Delhi ) where in it was held that in the absence of clear evidence that the samples kept in the sealed parcels taken from the malkhana to CFSL for analysis born the same seal which were affixed at the time of seizure, the possibility of sample having been tampered with cannot be ruled out and it cannot be said that what was seized from the appellant was never sent for analysis.
12) Fourthly, the tampering of the samples is not ruled out because there is difference in the weights of sample when same were analysied in the CFSL because as per prosecution story out of the recovered contraband 12 samples of 15 gram each were drawn and 6 sample were sent to FSL for chemical examination. As per FSL report the weight of the sample was found to be as under:-
A1-51.4 gm, B1-51. gm, C1-54.6 gm, D1-50. gm, E1-50.5gm and F1- 48.2 gm with polythene.
1) It is , therefore, argued that the difference in the weights of -::18::- FIR No. 78/04 PS: Narcotics Branch the samples when received at the FSL is showing great variation as compared to the weights of the sample at the time when the same was allegedly drawn from the case property. Hence, the tampering of the samples while they remained in police station is not ruled out.
2) Fifthly, the prosecution has failed to prove the conscious possession of the contraband by accused Bhairon Lal because he was neither driving the vehicle nor he was owner of the vehicle from which the contraband was allegedly recovered. Nothing incriminating has been recovered from his possession and prosecution has miserably failed to prove its case against him.
Reliance has been placed upon Surender Singh & Chintu Vs. Union of India 2004 (3) Criminal 634 wherein it was held that evenif it is presumed that appellants were present inside the room and they came out and tried to run away but it would not constitutes an offence because the room in which the contraband articles Opium was recovered not being possessed by the appellants; prosecution evidence was totally lacking on the aspect as to who was possessing the said room, contraband recovered from the room can be stated to be in possession of the person who was possessing the room in question. Further, reliance has also -::19::- FIR No. 78/04 PS: Narcotics Branch been placed on State of Punjab Vs Gurnam Kaur & Ors, III (2009) SLT 430 Supreme Court of India. In this case the accused persons were found sitting on the same bed beneath where the contraband had allegedly been kept. It was held that the said fact itself does not establish that all of them were in conscious possession of Narcotics because they were not even asked any question in regard thereto and they did not point out the place where the narcotics found kept and how raiding party found the same has not been disclosed.
3) There are several discrepancies in the prosecution case because one such glaring discrepancy is noted as reduction of merely 50 gm in the box mark-A whereas reduction of the weight should have been upto 100 gm because two samples of 50 gm each were drawn from each box; the log book of the vehicle used by the police officials was not produced by the prosecution; no proof regarding the ownership of the TATA Sumo no MH 12 BA 6903, the alleged vehicle used in carrying the narcotics has not been placed on record and important link evidence is thus missing .
4) Another glaring discrepancies is that the IO has not made any efforts to inform either SHO or the senior police officials with regard to apprehension of the accused persons and thereafter with -::20::- FIR No. 78/04 PS: Narcotics Branch regard to alleged recovery of the contraband; SHO did not visit the spot of the recovery to verify the correctness of the recovery. Further, there are contradictions in the deposition of the witnesses with regard to the presence of the SHO in the Police Station at the time of secret information received and the directions for the raid because as per prosecution case the secret information was received at 9.30 AM and then it was brought to the notice of the SHO and thereafter at about 10.00 AM raiding party proceeded towards the place of information but the duty officer PW1 has categorically stated that the SHO came to the Police Station only at 11.40 AM , therefore his testimony belies the case of the prosecution that the information was shared with the SHO at 9.30 AM. It is therefore vehementally argued that prosecution has miserably failed to prove its case against the accused persons as they were lifted from Chittorgarh, Rajasthan and brought to Delhi and falsely implicated as no contraband was recovered from their possession.
5) Ld Addl. PP for the State on the other hand argued that the discrepancies and contradictions as pointed out in the prosecution case are minor in nature and the same has nowhere adversely affected the prosecution case which has been proved -::21::- FIR No. 78/04 PS: Narcotics Branch beyond reasonable doubt. It is further argued that all the witnesses have fully supported the prosecution case while corroborating each other on all material points and IO had made sincere efforts to join the public witnesses who left showing their inability. It is forcefully contended on behalf of the State that the public witnesses were subjected to lengthy cross-examination and their testimony could not be discredited on any score whatsoever. It is also argued that the police official are competent witnesses and their testimony can not be discarded merely on the ground that they are interested witnesses in the success of their case. It is further argued that the case property and sample remained intact and there is no change in the seal impression when the sample were opened in the FSL in comparison with impression of the seal affixed at the time of recovery. Ld Addl. PP for the State has prayed that the case of the prosecution is proved beyond reasonable doubts and accused persons be convicted.
6) I have considered the rival submissions made at Bar and gone through the evidence carefully.
7) Regarding the first contention of Ld defence counsel for non-joining of public witnesses by the Investigating Officer, Ld Addl. PP for the State has drawn my attention to the testimony of -::22::- FIR No. 78/04 PS: Narcotics Branch recovery witnesses wherein they have stated that the Investigating Officer tried to join independent witnesses at all the stages of raid, recovery, investigation but all of them had refused. PW3 Ct.Khetaram in his cross-examination stated that SI Kuldeep Singh had got down at Raj Ghat from the vehicle and had asked persons present there to join the raid. PW8 Harcharan Singh has stated that while on the way SI Kuldeep Singh asked three women and two male persons at Raj Ghat bus stand, two water sellers and three passers-by at Burari Chowk and 8/10 passers-by and two banana sellers to join the raiding party at Mukarba Chowk. He further deposed that after the recovery of contraband before proceeding further, two cyclists and three passers-by were asked to join the proceeding but none agreed and left showing their personal difficulty. Similarly, on the way at bus stop Raj Ghat he requested three ladies and two men waiting their, to join the raid; at Burari chowk he asked two vendors of water trolley and three passers-by to join the raid; at Mukarba chowk bus stand he asked 8-10 persons and two vendors to join the raid; all those people refused and went away without disclosing their names and addresses.
8) Ld Addl. PP for the State has forcefully contended that the -::23::- FIR No. 78/04 PS: Narcotics Branch general public is not willing to join the police investigation either because of inconvenience caused to them on account of their appearance in the court on various dates or because of the fear of the accused. She has forcefully contended that the statement of the official witnesses should not be brushed aside and rather should be relied upon to base conviction against the accused. What then is the effect of the non-joining of the public witnesses in a raid against the accused? Should the case of the prosecution be seen with suspicion and thrown away? The answer is provided by a judgment of our own High Court reported as Govt. of NCT of Delhi Vs. Sunil (2001) 1 SCC 652 it has been observed:
"It is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. It is hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a preposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in court that a certain articles was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for -::24::- FIR No. 78/04 PS: Narcotics Branch the accused, through cross examination of witnesses or through any other materials to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions".
9) 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 inconvenience to be suffered in attending the courts.
10) I have gone through the statements of the PWs in a careful manner. I find ample corroboration in the testimony of the PWs, especially the recovery witnesses. They have deposed uniformly about the receipt of information against the accused, the organisation of a raiding party and the manner of apprehension of the accused. They have also corroborated each other on the point -::25::- FIR No. 78/04 PS: Narcotics Branch of recovery of contraband "Opium" from the accused persons. They have also uniformally deposed about following the procedure laid down under the NDPS Act and due precaution taken by the Investigating Officer for compliance of the provisions of the NDPS Act. They have successfully withstood the test of lengthy cross examination. Their statements have not been discredited on any material aspect of the case. There is nothing material on record to show that they have deposed falsely with a bias against the accused. The deposition of police officials in this case is, therefore, found to be coherent and trustworthy.
11) A reliance can be placed upon on the case of our own high Court in Criminal Appeal No. 86 of 1992 - Decided on February 17, 1993 Gurcharan Singh @ Channi and another Vs. State held as under:-
"In Ronald Markas Goonthar Vs. State of Rajasthan, 1988 (3) Crimes 737 (Raj.), "Police Officers are citizens and the public servants. Generally, it is expected that they perform their duties faithfully and sincerely. A presumption under Section 114 of the Evidence Act can be drawn that they perform their duties in the ordinary course of business faithfully and sincerely. Their evidence cannot be discarded only on the ground that they are Police Officers. However, a note of caution will always have to be kept in mind looking to the law of land; particularly Section 25 of the Evidence Act and Section 161 CrPC."-::26::- FIR No. 78/04
PS: Narcotics Branch
12) Regarding the second contention of possibility of tempering with the sample because of delay in sending the same to the FSL, Ld Addl. PP for the State submitted that the sample are to be deposited with the FSL after taking a prior permission from the concerned Laboratory because of heavy load works in the laboratory. It is further argued that there is no delay in sending the samples as the same has been sent within 10 days of their deposit in the malkhana. It is in the common knowledge of all the courts that because of less number of Forensic Science Laboratory (FSL) the same are overburdened and there is force in the submission of Ld Addl. PP for the State and therefore there is no inordinate delay in depositing the sample in the FSL. Regarding the possibility of tempering of the sample in the Police Station, retaining of his own seal by the SHO and handing over of seal to a subordinate official in the absence of independent witness, prosecution case cannot be thrown away forthwith. The evidence of the witnesses in whose possession the sample remained in Police Station has to be scrutinized carefully to find out whether the deposition of said witness is consistent and reliable or not. I have gone through the deposition of PW2 HC Jagat Kumar who was in possession of the samples between 11/10/2004 to -::27::- FIR No. 78/04 PS: Narcotics Branch 21/10/2004 as he was posted as MHC(M) at Police Station Narcotics Branch. He has categorically deposed that on 11/10/2004 at about 5.15 PM Inspector P.S. Hooda the SHO Police Station Narcotics Branch had deposited with him the carbon copy of seizure memo, 12 envelop parcels marked A1, A2, B1, B2, C1, C2, D1, D2, E1, E2, F1 and F2 duly sealed with three seals of 2APS NB DELHI on each parcels and one seal of 1SHO NBR DELHI on each parcel. The SHO further deposited with him 6 sealed parcels in plastic Kattas duly sealed with the above mentioned seals. The FSL-form was also deposited with him and he had recorded the entry at serial no. 464 in the malkhana register. He further deposed that on 21/10/2004, the sample parcels in intact position were sent to FSL office through Ct. Praveen Kumar vide RC no. 193/21 and the relevant entry in column no. 8 against serial no.464 was made in the malkhana register. He has proved the photocopy of entry at serial no. 464 running into three pages as Ex.PW2/A and as also proved the carbon copy of the RC no. 193/21 as Ex. PW2/B. He categorically stated that "so long the case property and sample parcels remained with me nobody had tempered with and the seals therein remained intact". In his cross-examination by Ld defence counsel he has stated that Ct. Praveen took the -::28::- FIR No. 78/04 PS: Narcotics Branch sample parcel from him at a bout 10.30AM and returned at about 4.00/4.30 PM; Ct. Praveen had handed over him the receipt Ex.PW2/DA after depositing the samples to FSL; the SHO has applied his seal on the parcel in his presence when he was called by the SHO in his room through Ct. Khetaram. No suggestion was given to this witness in his cross-examination regarding the tempering of the samples in his possession. It was simply suggested to him that no parcels were sent by him to the FSL. His deposition wherein he has categorically stated that the case property and the sample parcels remained with him intact and nobody had tampered with it and the seals thereon also remained intact is unquestioned and unchallenged and this witness has successfully with stood the test of cross-examination. His testimony is found to be consistent and reliable and the contention of the Ld counsel is therefore found to be without any force.
13) Regarding the third contention of Ld defence counsel alleging tampering of the samples because of difference in the seal impression as mentioned in the FSL report in comparison to seal impression on the samples at the time of recovery and sent to FSL, I have gone through the evidence of PW3 Ct. Praveen Kumar. -::29::- FIR No. 78/04
PS: Narcotics Branch He has deposed that on 21/10/2004 on the direction of the SHO, HC Jagat Kumar handed over to him 6 sample pullandas affixed with two seals of 2APS NB DELHI and one seal of SHO NBR DELHI along form-FSL having the same seals . He further deposed that he had deposited the above sample and the form FSL in FSL, Rohini against receipt on the road certificate and deposited the receipt with the MHC (M) immediately on his return in the Police Station; till the sample pullanda remained in possession same were kept safe and intact and were not tampered with. The deposition of this witness is unquestioned and unchallenged as no cross- examination has been carried out despite opportunity given to the accused. The FSL report dated 31/1/2005 given by Dr. Madhulika Sharma, Assistant Director, (Chemistry) Forensic Science Laboratory Delhi is not questioned by the accused persons and the same is also per-se admissible u/s 293 CrPC. The description of the articles contained in parcels A1 to F1 as per FSL report is as under:-
6 paper envelop each sealed with the seal of SHO/NBR 1 DELHI and PS/NB2A DELHI.
14) The seal impression as mentioned in the FSL report are the same seal impressions because the word and figures has been simply mentions at different position. Moreover, nothing was -::30::- FIR No. 78/04 PS: Narcotics Branch suggested to the SHO and the IO in their cross-examination if they were having the seal with the seal impressions as mentioned in the FSL report. As per acknowledgment of the receipt of the sample in the FSL vide Ex. PW2/DA, the six sealed envelops were received in the chemistry division vide FSL 2004/C-2619. For the above reasons, I am convinced that there is nothing to show that the sample parcels were tempered with before or after deposit of the same in the Police Station till the same were chemically analyzed by the FSL, Rohini vide report dated 31/1/2005 which is per se admissible in evidence. This contention of Ld defence counsel also does not hold water.
15) Regarding fourth arguments of the Ld defence counsel alleging tempering of the sample because of difference in the weights of the sample in the FSL, I am of the considered opinion that there is only a slight difference of few grams noticed by the FSL report and the said insignificant difference does not show that the sample were tempered with. Considering the nature of the substance and the facts and circumstances when the same was kept in sample parcels, this small difference noticed by the FSL report in the weight of the sample is to be ignored by the Court.
16) Regarding the fifth arguments about conscious possession -::31::- FIR No. 78/04 PS: Narcotics Branch of the contraband by the accused Bharion Lal having not proved by the prosecution and the cases referred and relied by the Ld counsel for the accused on the said point, I am of the considered opinion that the question relating to the conscious possession of the contraband recently arose before the Hon'ble High Court of Delhi in Criminal 926/2006 titled as Suren Mandal Vs. The State (Govt of NCT) Delhi decided on 9/2/2009. In this case the accused was found sitting on the bags containing contraband and he was apprehended on the basis of secret information which was communicated to him, the Hon'ble High Court held that in case of prior secret information having disclosed to the accused, prosecution was not required to establish that the accused was in the conscious possession of the contraband. The finding recorded by Hon'ble Mr. Justice Sunil Gaur in this case referred (Supra) from para. 9 to para.19 is relevant and squarely applicable to the present case and is therefore reproduced as under:-
"9.LearnedCounselforappellant has assailed theconviction of theAppellant/accused soleon thegroundthattheprosecution has failed toprovethatAppellant was inconscious possession ofthe recoverednarcotic substanceand he relies upon thedecisions reported in2002 SCC (Cri) 1769;2004 SCC (Cri) 838;2003 (3) JCC 1513;2006 (1)RCR (Cri)4;
2005 (1)RCR (Cri)70;
and 2009 (1)RCR (Cri) 310 tocontendthatmerelybecausetheaccusedis -::32::- FIR No. 78/04 PS: Narcotics Branch foundsitting on the bags,containing thenarcotic substance, it cannotbe presumed thathe was in possessionof the said substance.
Ithas been pointed outthatithas notbeen puttothe Appellant/accused inhisstatement undersection 313 CrPC that the Appellant/accused was in "conscious possession"
" of the recoverednarcoticsubstanceand therefore, the impugned judgmentconvicting theAppellant/accused isrenderedillegal and Appellant deservesto be acquitted.
Nothingelseisurgedon behalf of the Appellant/accused.
10. Learned Additional Public Prosecutor for the State submits th thestandtakenby theAppellant/accused inhisstatement under section313 C r.P.C . is of the ganja being recoveredfrom somebody elseand ofplanting itupon theAppellant.
Itispointed outthatitwas puttotheAppellant inhisstatement undersection 313 C r.P.C . thattherewas secretinformation of Appellant possessing ganjaand forthatpurposethesearchofthebags,on whichtheAppellant was sitting was tobe takenand an offer was giventotheAppellant togetthesearchconductedinthepresence of the GazettedOfficer or Magistrate, but the Appellant had declined.
Thus,itissubmitted thattherewas no requirement of specifically puttingto the Appellant/accused thathe was in conscious possession oftheganja, whichwas recovered fromthe bagson whichtheAppellant was sitting.
Itispointed outthatthe casescitedon behalfoftheAppellant pertain totherecovery of poppy husk etc.and none of thosecases were of priorsecret information and were ofchancerecovery whileon patrolling and therefore, theaforesaid decisions aredistinguishable on facts and the conviction and sentenceimposed upon the Appellant is perfectly legal and justified in this case.
11. The conceptof "conscious possession"has been -::33::- FIR No. 78/04 PS: Narcotics Branch dealtwithby theApex Courtina greater detail inthecase of 'MeghSinghvs.StateofPunjab'2003 (3)JCC 1513,by holding thatonce possession isestablished, thepersonwho claimsthat he was notina 'conscious possession', hastoestablish itbecause how he came tobe inpossession, iswithin hisspecial knowledge.
Section35 oftheNDPS Actgivesa statutory recognition ofthis position becauseofpresumption available inlaw. Similar isthe position in termsof section54 of the NDPS Act,where also presumption isavailable tobe drawnfromthepossession ofillicit articles.
12. Intheaforesaid decision, ithas been highlighted by theApex Courtthatincriminal law,thereareno precedents and the apt observations made read as under:-
"Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases or between two accused in the same case. Each case depends on its own fact and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect. It is more pronounced in criminal cases where the backbone of adjudication is fact based."
13. Itis truethat in a case of chance recovery, the question of 'conscious possession', woulddefinitely be of prime importance.
Presentcase is of priorsecretinformation and therefore, thedecisions citedby learnedcounselforappellant of 'chancerecovery' would not be of any help. There was no occasionforframingof specific questionof Appellant beingin 'conscious possession' oftherecoveredganja,as thefactumof prior secret information was already disclosed totheAppellant and despite opportunity toconductthesearchofthebagson whichhe was sitting, inthepresenceofGazettedOfficer beinggiventothe -::34::- FIR No. 78/04 PS: Narcotics Branch Appellant.
The standtakenby theAppellant isofmere denial, whichcannotbe acceptedon thefaceofit, inthefactsof this case.Infact, Appellant was foundsitting on thebags,whichwere lying notoutside theexitgateofNew DelhiRailwayStation, but were lying on thepavementoutside MCD Jan SuvidhaComplex, whichwas, of course,oppositeto the exitgate of New Delhi Railway Station.
14. Ithas been neithersuggestedto the prosecution witnessesnor itisthe standof the Appellant inhisstatement undersection313 CrPC thatAppellant was not aware of the contents ofthebagson whichhe was sitting.
Infact, thestandof theAppellant has been thattheaforesaid recovery of137 Kgs of ganjahasbeen planted upon theAppellant.
Ithasnotbeen shown as to why such a heavy recoverywould be plantedupon the Appellant.
ItisnotthecaseoftheAppellant thattheraiding team had any animusagainst theAppellant, who does notexplain his presence at the spot. Hr tales no plea of alibi.
15. Itispertinent totakenoteofthequestion No.10,which was putby thetrial courttotheAppellant inhisstatement under section 313 CrPC and it reads as follows:-
"Q.10. It is further in evidence against you that PW5 SHO S.P. Kaushik told to you the secret information that they have an information that you indulge in selling of ganja in Delhi and at this time also ganja can be recovered from your possession for which search your gunny bags is to be taken by the police; that you were also apprised of your legal rights that if you so desire, you could be produced in front of a Gazetted Officer or a Magistrate and you can take search of the police party prior to your search. What have you to say?
Ans. It is incorrect."
-::35::- FIR No. 78/04
PS: Narcotics Branch
16. Had itbeen thecaseofAppellant
sitting
on thebags
(fromwhichganjawas recovered),
whilewaiting
forthebus or
somebody,theninnormalcourse,
he wouldhave statedso while
answering
any ofthequestions
puttohimundersection
313 ofthe
CrPC. Insteadof takingany such plea,thestandtakenby the Appellant inhisstatement undersection 313 CrPC isofrecovery of 137 Kgs of ganjafromsomebody elseand ofbeingplanted upon the Appellant.As alreadynotedabove,the pleaof the Appellant ofplanting such a heavy recoveryupon him istotally unacceptable.
17. Itispertinent tonotethattherecovery of137 Kgs.of ganjafromthebags on whichtheAppellant was sitting stands firmly provedfromevidenceon recordand therefore, burdenshifts upon theAppellant to explain.The explanation offered by the Appellant ishardly acceptable and thepleaofhisnotbeingaware as towhatwas contained inthebags,on whichhe was sitting is neither takennorisavailable tohim,as thepresent caseisnotof chancerecovery norofpresenceoftheAppellant atthespotbeing by chance.Iam oftheconsidered opinion thatthenecessity of framinga specific question of 'conscious possession' wouldnot arise inthis caseas thepresent caseisofprior secret information, which was already disclosed to the Appellant/accused.
18. Intheultimate analysis, itisfoundthattheconviction and thesentenceimposedupon theAppellant suffers from no illegality or infirmity and isperfectly justified in thefaceof the evidence on record.
19. Thereisno meritinthisappeal, whichdeservestobe dismissed. It is ordered accordingly."
17) Similarly, the present case is also of prior secret -::36::- FIR No. 78/04 PS: Narcotics Branch information communicated to the accused before their search and consequent recovery of contraband from their possession and it is not a case of chance recovery. PW9 SI Kuldeep Singh Investigating Officer has deposed that as per secret information he reached the spot alongwith members of raiding party and at about 11.40 am, carried out a Nakabandi at Mukarba Chowk bus stop. At about 12.05 PM they spotted a TATA Sumo of white colour coming from Mukarba Chowk bearing registration no. MH 12BA 6903 (as mentioned in the secret information) and the same was made to stop. Two persons were sitting in the front and same was being driven by accused Satya Narain and accused Bharion Lal was sitting besides the driver of the front. Accused Bharion Lal while sitting on the front seat was keeping his right hand on an off- white coloured plastic container. He further deposed that before searching the vehicle the accused persons were introduced with the raiding party and also about the secret information and thereafter were served with a notice u/s 50 NDPS Act separately. They were also informed about their rights to be searched in the presence of a Gazetted officer/Magistrate but both of them refused to avail the said opportunity by recording their refusal Ex.PW4/D and Ex. PW4/E respectively; both the accused refused -::37::- FIR No. 78/04 PS: Narcotics Branch to get themselves or their vehicle searched in the presence of Gazetted officer/ Magistrate or to search the person of the police party. He further deposed that thereafter he checked the container mark-A ( accused Bharion Lal was keeping his right hand on this container) and found it containing a black sticky substance which tested positive for Opium. On the back seat of TATA sumo behind the driver, five similar container were recovered which were given mark-B, C, D, E and F and also found containing Opium. All containers except mark-B were containing 14 Kg Opium and the mark-B was containing 10 Kg. In his cross- examination no question was suggested to the effect that accused Bharion Lal was not keeping his hand on the container mark-A. Similarly, nothing was suggested to the witnesses that the TATA Sumo no. MH-12-BA-6903 was not in their possession from which contraband was recovered. It was simply suggested that the accused persons were lifted from Chittrogarh, Rajasthan and brought to Delhi and thereafter contraband was planted upon them at the Police Station Narcotics Branch. The defence taken by accused persons u/s 313 CrPC has not been substantiated by them as they have not led any defence evidence despite seeking opportunity for the same. The apprehending of the accused persons while carrying -::38::- FIR No. 78/04 PS: Narcotics Branch the contraband in the TATA Sumo no. MH-12-BA-6903 has been sufficiently established by the prosecution because the deposition of witnesses in that regard was found to be consistent and reliable. The evidence of PW 9 Kuldeep Singh is unchallenged wherein he has categorically deposed that accused Bhairon Lal was sitting on the front seat of the vehicle and was keeping his hand on container mark-A and other containers were kept on the rear seat of the vehicle. For this reason, it stands established that the vehicle in question was in possession of both the accused persons at the relevant time and whatever was kept in the said vehicle was also in their possession and the same was also within their knowledge. The ratio of Suren Mandal's case referred (Supra) is squarely applicable to the present case and I find no force in the arguments of the Ld defence counsel that the accused Bhairon Lal was not in conscious possession of recovered contraband from TATA SUMO MH-12-BA-6903.
18) With regard to the last contention about several discrepancies in the prosecution case, I am of the considered opinion that the discrepancies pointed out by Ld defence counsel are minor in nature because the deposition of the prosecution witnesses is found to be reliable, therefore case of the prosecution -::39::- FIR No. 78/04 PS: Narcotics Branch cannot be thrown away because of a few insignificant discrepancies. The prosecution witnesses have been subjected to lengthy cross-examination and nothing was elicited in their cross- examination and they have successfully with stood the test of cross-examination.
19) In the light of the consistent and reliable testimony of prosecution witnesses, the defence taken by the accused person in their statement u/s 313 CrPC is found to be improbable which otherwise has not been substantiated by them either by examining themselves on Oath or by leading any evidence in their defence.
20) As per law laid down in the case of "Ansar Ahmed Vs. State", JCC 2005 (3) 193 and 2008 (2) JCC Narcotic 65 and 2008 (2) JCC Narcotic 65, "Manohar Lal Yadav Vs. State (NCT of Delhi)", the percentage of the morphine as per the report of the FSL dated 31/1/2005 has to be considered for deciding the quantity of the contraband recovered from the accused persons. In all the samples mark A1 to F1 the percentage of morphine and other substance has been more than 0.2%, therefore the alleged contraband recovered has been found to be opium. The breakup of the recovered contraband from six containers is given as -::40::- FIR No. 78/04 PS: Narcotics Branch under:-
Weight of each % of morphine in each Weight of opium in each container sample (in %) container (in gms) 14 Kg i.e 14000 gms 5.1 714 10 Kg i.e 10000 gms 4.4 440 14 Kg i.e 14000 gms 9 1260 14 Kg i.e 14000 gms 8.1 1134 14 Kg i.e 14000 gms 9.7 1351 14Kg i.e 14000 gms 10.2 1428 Total: 80 Kg with container 46.5 6327
21) Thus according to the calculation given above the weight of the opium out of the 80 kg of the recovered contraband came to 6.327 Kg. According to the schedule given in the notification dated 16th July,1996, the weight of the opium more than 2.50 Kg is considered to be commercial quantity. Hence, in this case the weight of the opium is 6.327 Kg, therefore the same falls in the commercial quantity.
22) From the above discussion, I am convinced that on 11/10/2004 at 12.05 P.M near Mukarba Chowk, Bus Stand G. T. Karnal Road, Delhi, the accused Bhairon Lal was apprehended by the raiding party headed by SI Kuldeep and opium weighing 6 Kg, 327 grams was recovered from his possession which was being transported in TATA SUMO no. MH-12-BA 6903. I therefore hold -::41::- FIR No. 78/04 PS: Narcotics Branch him guilty and convict him accordingly for the offence punishable u/s 18 ( B) of the NDPS Act,1985.
23) I am further convinced that on on 11/10/2004 at 12.05 P.M near Mukarba Chowk, Bus Stand G. T. Karnal Road, Delhi, accused Satya Narain was occupying and having control of TATA Sumo no. MH 12 BA 6903 as its driver and knowingly permitted the said vehicle to be used by co-accused Bharion Lal for possessing and transporting 6 kg 327 grams Opium in contravention of Section 8 (C) of the NDPS Act. I therefore hold him guilty and convict him u/s 25 of the NDPS Act. ANNOUNCED IN THE OPEN COURT ON 31/7/2009 (RAJ KUMAR CHAUHAN) ASJ/SPECIALJUDGE:NDPS (WEST)DELHI -::42::- FIR No. 78/04 PS: Narcotics Branch IN THE COURT OF SHRI RAJ KUMAR CHAUHAN ADDITIONAL SESSIONS JUDGE:SPECIAL JUDGE: NDPS:
TIS HAZARI COURTS:(WEST) DELHI FIR no. 78/04 Police station: Narcotics Branch U/s 18/25/29 NDPS Act State V/s (1)Bhairon Lal (2) Satya Narain ORDER ON SENTENCE Present: Ld Addl. PP for the State Both convicts produced from JC with Ld counsel Shri Varun Khera Associate of Shri Mukesh Kaila advocate.
1. The accused Bharion has been convicted u/s 18(B) of NDPS Act whereas accused Satya Narain has been convicted u/s 25 read with section 18 (B) of NDPS Act.
2. I have heard the Ld counsel for convicts who prayed for lenient view on the ground that accused Bharion Lal is the only bread earner in the family comprising his wife and children and is aged about 55 year is not previous convict. Ld counsel further submitted that accused Satya Narain is of young age of 30 years and has to support aged parents and his wife and he is not previously involved in any other offence.
3. Ld Addl. PP for the State on the other submitted that accused Bharion Lal was also involved in a case of NDPS vide FIR -::43::- FIR No. 78/04 PS: Narcotics Branch no. 56/2000 u/s 18 of the NDPS Act Police Station Raniwara, District Jalore, Rajasthan, therefore maximum punishment awarded to them.
4. Ld counsel for the concivt submitted that in the above case the accused Bharion Lal was already acquitted in the year 2006 and a report dated 27/3/2006 from Jail Supdt, Jodhpur is already on record in that regard.
5. I have considered the submissions made at Bar. The case of the convicts falls in the commercial quantity. Considering the facts and circumstances of the case and the antecedents of the accused persons, I am of the considered opinion that the end of justice shall be met if convicts are sentenced to minimum punishment provided u/s 18(B) of the NDPS Act. Accordingly a lenient view is taken and convict Bharion Lal is sentenced to undergo rigorous imprisonment of 10 year and with fine of Rs. 1,00,000/- for the offence u/s 18 (B) of the NDPS Act . In default of payment of fine he shall undergo simple imprisonment for six months.
6. Convict Satya Narain is sentenced to undergo rigorous imprisonment of 10 years and with fine of Rs. 1,00,000/- for the offence punishable u/s 25 NDPS Act read with section 18(B) NDPS -::44::- FIR No. 78/04 PS: Narcotics Branch Act. In default of payment of fine he shall undergo simple imprisonment for six months. Both the convicts are in Judicial custody since arrest i.e 11/10/2004. Benefit of section 428 CrPC is extended and the period of imprisonment already suffered by them during trial be set off from the sentence of imprisonment awarded to them.
7. The proceedings u/s 60 of the NDPS Act be initiated for confiscation of vehicle involved in the offence i.e TATA SUMO bearing registration no. MH-12BA 6903 after the expiry of period of appeal. The case property be destroyed after the expiry of appeal.
8. Copies of the judgment and order on sentence be supplied to convicts free of cost.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 31/7/2009 (RAJ KUMAR CHAUHAN) SPECIALJUDGE:NDPS (WEST): DELHI