Delhi District Court
Sc No. 39/11 Fir No. 149/10 State vs . Ravinder & Anr. Dtd; 26-08-2013 Pg.. 1 ... on 26 August, 2013
1
In the court of Dig Vinay Singh, Addl. Sessions Judge/Special
Judge: NDPS: Rohini Courts: Delhi
In the matter of:
S.C. no. 39/11
FIR no. 149/10
P.S. Crime Branch
U/S 18 NDPS Act
State
Versus
1. Ravinder Kumar
S/o Rameshwar
R/o Village & PO Chahar Kalan,
PS Bahal, Distt. Bhiwani (HR)
2. Mohan Kumar
S/o Amar Singh
R/o Vill. Motipura, Teh.& P.S. Shivani,
Distt. Bhiwani (HR)
Date of receipt : 15.02.2011
Date of arguments : 21-08-2013
Date of announcement : 26-08-2013
JUDGMENT
1. The above named two accused were charge sheeted with the case of prosecution that on 10th of November 2010, at about 3 PM, at Ganda Nala Pul, towards Bhalaswa Dairy, Delhi, both the accused were found in possession of 25 kg of 'Opium'. The contraband was recovered from inside a car which belongs to the accused Ravinder. Both the accused were physically present in the car at the time of apprehension. Accused SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 1 of 37 2 Mohan drove the car to the spot. Accused Ravinder was physically holding the gunny bag while sitting on the front passenger seat of the car. The recovery of contraband was effected from the two accused, pursuant to secret information received by SI Sunil Kumar. It was, by name information against both the accused. From the recovered contraband two samples of 100 grams each were drawn, and out of it one sample was sent to the FSL which also tested positive for 'Opium'.
2. Accordingly, charges under section 18 of NDPS Act were framed against both the accused. In addition accused Ravinder was also charged for offence under section 25 of NDPS Act, for allowing his car to be used for commission of offence under the Act. Both the accused pleaded not guilty and claimed trial.
3. In support of its case prosecution examined total 11 witnesses.
3.1. Out of the 11 witnesses examined by the prosecution, PW-2 SI Sunil Kumar; PW-6 Ct. Neeraj; PW-7 ASI Harcharan Singh and; PW-8 Inspector Rajesh are the recovery witnesses. SI Sunil Kumar (PW-2) deposed that on 10th November 2010 at about 1:15 PM, one secret informer came and informed him that the two accused would come at the spot, in a Tata Indigo car bearing number HR-18-A-7782, between 2.30 PM to 3:30 PM, to supply 'Opium' to one Satpal. He produced the secret informer before PW-8 Inspector Rajesh, who also enquired from the secret informer. On being satisfied with the secret information, PW-8 informed the Addl DCP of the Special Investigating Team (SIT for short), crime branch, telephonically, and the Addl DCP directed that appropriate action be taken. Thereafter the secret information was reduced into writing under DD number 10, Exhibit PW-8/A, and a true copy of it was SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 2 of 37 3 furnished to PW-8, in compliance of section 42 of NDPS Act. PW-8 signed and forwarded the report to the Addl DCP. Thereafter a raiding party was constituted comprising of PW-2; 6; 7; 8; ASI Ajmer Singh; HC Kanwarpal; Ct. Suresh; Ct. Atul and; Ct. Kaushal. The raiding team, left for the spot, along with the secret informer; the investigating officer's bag; electronic weighing machine and; a field testing kit. On the way to the spot and also at the spot certain public persons were requested to become witness but none of them agreed. At the spot, the raiding team members took position, and at about 2:55 PM the secret informer pointed out towards an Indigo car of silver colour, which came towards the raiding party from the side of Bhalaswa Red light crossing. The car was being driven by accused Mohan Kumar and accused Ravinder was sitting on the front passenger seat. After identifying the two accused the secret informer left the spot. The car came and halted at a distance of around 10 meters from the raiding team members. Thereafter Mohan Kumar came out of the car and went up to Ravinder, who was still sitting on the front passenger seat. Both the accused spoke to each other for some time, while looking here and there. Thereafter, Mohan Kumar again came towards the driver's seat of the car and at that time the raiding party apprehended both the accused. At the time of apprehension Ravinder attempted to flee, but was apprehended. It is deposed that Ravinder, while sitting in the car, was holding one plastic gunny bag between both his legs and he was also holding the same with his hands. Thereafter PW-2 introduced himself and other members of the raiding team to both the accused and also told them about the secret information against them. The two accused were explained their legal rights under section 50 of the NDPS Act. Written notices under section SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 3 of 37 4 50 of NDPS Act were prepared and were served upon the two accused, by delivering its carbon copies to them. Both the accused refused to exercise their legal rights and they noted down their refusal in their own handwriting on the notices. The notices are proved as Exhibit PW-6/A and PW-6/C, qua Mohan and Ravinder, respectively, and their refusals are proved as Exhibit PW-6/B and 6/D, respectively. Thereafter again certain public persons were requested to become witness but none of them agreed. Thereafter, Ravinder and the plastic gunny bag which he was holding inside the car, were searched. Inside the plastic gunny bag one aluminum container was found. The aluminum container was containing some blackish brownish coloured sticky substance, which appeared and smelt like 'Opium'. Small portion of the contraband was tested with the help of field testing kit, which also confirmed the material to be 'Opium'. A plastic tub was requisitioned, through PW-6 Ct. Neeraj. The contraband was emptied into the plastic tub and thereafter it was measured on the electronic weighing machine with the help of a polythene sheet. Its total weight came to be 25 kg. Out of it, two samples of 100 grams each were separated. The sample parcels were given Mark A and B. The remaining 'Opium' was kept back in the same aluminum container; Doctor's Tape was applied on the lid of the container; and after keeping the container back in the same plastic gunny bag, the plastic gunny bag was wrapped with a cloth, and then the bag was sealed.. It was given Mark C. All the three parcels were sealed with the seal of SKS. Thereafter FSL form was filled up, on which also the same specimen seal was applied. All the three parcels and the FSL form were taken into police possession vide seizure memo Exhibit PW-6/E. Thereafter formal search of Mohan was conducted, but nothing SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 4 of 37 5 incriminating was recovered from his possession and regarding it a memo Exhibit PW-6/F was prepared. Thereafter formal search of the car was also undertaken but no further incriminating material was recovered from the car and regarding it also one memo Exhibit PW-6/G was prepared. Subsequently Rukka Exhibit PW-2/B was prepared and was handed over to PW-6 Ct. Neeraj to be taken to the police station for registration of FIR. Along with the rukka, PW-6 was also handed over all the three sealed parcels, the FSL form and one carbon copy of the seizure memo, with a direction to hand it over to the SHO in compliance of section 55 of NDPS Act. Meanwhile PW-8 Inspector Rajesh had already informed the SIT office for sending PW-10 ASI Shiv Darshan to the spot for further investigation. It is deposed that thereafter PW-10 ASI Shiv Darshan reached the spot at 7:15 PM and custody of both the accused along with all the documents prepared by PW-2 were handed over to PW-10.
3.2. It is also deposed by PW-2, PW-7, PW-8 and, PW-10, that thereafter PW-10 prepared site plan Exhibit PW-10/A, at the instance of PW-2. Subsequently the two accused were arrested vide arrest memos Exhibit PW-7/A & 7/B. It is also deposed that personal search of both the accused was conducted vide memos Exhibit PW-7/C and 7/D, in which the carbon copy of notice under section 50 NDPS Act was recovered from each of them, besides other articles. Thereafter PW-10 conducted search of the car vide memo Exhibit PW-7/G, and from the car the registration certificate of the car was recovered. Thereafter the two accused were taken to SIT office and there personal search articles SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 5 of 37 6 along with the car was deposited in the Malkhana of police station Crime Branch Nehru Place.
3.3. PW-8 & 10 also deposed about submitting of reports under section 57 of NDPS Act qua seizure of contraband and arrest of the two accused, within stipulated period.
3.4. The remaining prosecution witnesses are more or less formal witnesses.
3.5. PW-11 Inspector Kuldeep and PW-6 Ct. Neeraj both deposed that on the date of incident, PW-11 was the SHO of the police station Crime Branch and PW-6 delivered all the three sealed parcels along with one FSL form and a copy of seizure memo to PW-11. PW-11 applied his seal of KSY on all the three parcels as well as the FSL form. Thereafter PW-11 enquired the FIR number from the duty officer and noted it down on all the three sealed parcels, the FSL form as well as the carbon copy of seizure memo, and he also signed all of them. Subsequently, he called PW-4 HC Jag Narain in his room along with register number 19.
3.6. It is deposed by PW-4 HC Jag Narain and PW-11 Inspector Kuldeep that PW-4 brought the register and thereafter PW-11 handed over all the three sealed parcels and the two documents to PW-4 who made entry, Exhibit PW-4/A, in register number 19. PW-11 also deposed that DD number 15 was lodged with respect to deposition of case property.
3.7. PW-4 HC Jag Narain also deposed that on the same day the subsequent investigating officer PW-10 deposited personal search articles of the two accused and the car in the malkhana regarding which he made another entry Exhibit PW-4/B. SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 6 of 37 7 3.8. PW-1 and PW-4 also deposed that on 19th of November 2010 the sample parcel bearing Mark A, duly sealed with the seal of SKS and KSY, was sent to the FSL along with the FSL form, vide RC number 397/21/10, Exhibit PW-4/D, and regarding which endorsement, Exhibit PW-4/C, was also made in register number 19. It is also deposed that after depositing the sample parcel in the lab PW-1 obtained one acknowledgement receipt, Exhibit PW-4/E, which was deposited in the malkhana on the same day.
3.9. PW-4 also deposed regarding receipt of the FSL result on 27th of January 2011 vide endorsement in register number 19 Exhibit PW-4/F. 3.10. PW-3 ASI Subhash Chand proved receipt of the true copy of DD number 10 on 10th of November 2010 in the office of Addl DCP, as well as the receipt of the two reports under section 57 of NDPS Act on 11th November 2010. He proved those three reports as Exhibit PW-3/B, 3/D and 3/F and their corresponding entries in the Diary register as Exhibit PW-3/A, 3/C and 3/E, respectively.
3.11. PW-5 HC Ashok Kumar was the duty officer who proved registration of FIR Exhibit PW-5/A; endorsement on rukka Exhibit PW-5/B and; DD number 12 Exhibit PW-5/C. 3.12. PW-9 Ram Kumar proved that the car in question, from which recovery of contraband was affected, was registered in the name of Ravinder Kumar.
4. On completion of prosecution evidence, all the incriminating evidence was put to the two accused in their respective statements under section 313 Cr. P. C. SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 7 of 37 8 4.1. Ravinder generally denied the evidence of the prosecution and claimed that he has been falsely implicated in this case. He claimed that he was not apprehended from the spot, but was apprehended, on the date of incident between 9 PM to 10 PM, from Budpur village, near Karnal bypass, in Delhi. He claimed that he had gone to the said village to attend a marriage along with one Ranbir, Ranbir's wife and Ranbir's son. He claimed that he was taking Tea and the car in question was parked nearby, when certain police officials came in civil dress in an Innova car and forcibly picked him from that place. He also claimed that other guest of marriage tried to intervene but the police officials threatened them. He claimed that his car was towed away and was brought to the police station along with him, since the key of the car was lost during the commotion. He claimed that his co-accused Mohan was not even present with him and was not apprehended with him. He even claimed that Mohan was not even known to him until the case was planted upon both of them. Rather he claimed that Mohan was already in the police station when he was taken to the police station. He claimed that nothing was recovered from his possession and the gunny bag as well as its contents was planted upon him. Regarding existence of his signatures on the memos, he claimed that his signatures were obtained on blank papers by the police officials in the police station after threatening him and after beating him. He claimed that when he was taken to the police station three other persons were present in the police station who were let off by the police after accepting bribe from them and the contraband recovered from those three persons was planted upon him and his co-accused. However he admitted that the car in question was registered in his name. When SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 8 of 37 9 this accused was questioned as to why the prosecution witnesses have deposed against him, he vaguely replied that the witnesses deposed against him being police witnesses only and a false case has been planted upon him.
4.2. In the defence evidence, Ravinder examined DW-1 Israr Babu who was nodal officer of mobile services provider, Vodafone. However this witness was unable to bring the mobile call details of the two mobiles as desired by the accused on the ground that more than one year, from the date the calls were made, had passed, by the time the record was summoned and therefore the call records were not preserved and were destroyed. Therefore those call detail records could not be proved. Besides this witness accused Ravinder did not examine any other witnesses in his favour.
4.3. When the incriminating evidence was put to Mohan, he also claimed that he has been falsely implicated in this case and no contraband was recovered from his possession. This accused claimed that on 10th of November 2010 he had come to Delhi for the first time along with Ravinder. He claimed that he was dropped at the house of Ravinder by his cousin brother, and from the house of Ravinder he accompanied him in the car in question, as Ravinder had asked him to accompany him to a marriage. He claimed that both of them were present at Budpur village near Karnal bypass and the car was parked in the said village where the marriage was to be performed. He admitted that he drove the car of Ravinder on the date of incident, but claimed that he was not present at the spot. He also claimed that he was picked up from Budpur village by the police when he was standing near a tea stall near SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 9 of 37 10 the place of marriage. Regarding recovery of contraband, he stated that no such contraband was being carried by Ravinder or was recovered from Ravinder. Mohan also claimed that his signatures also were obtained on blank papers by the police officials in the police station. He claimed that he was driver by profession and on the date of incident he was driving the car of Ravinder on request of Ravinder as he knew him from before. He claimed that he was picked up alone and not along with accused Ravinder from Budpur village. He claimed that he was picked up by few police officials who were in civil dress and who had come to the spot in an Ecco car. He claimed that he was not even aware whether Ravinder was picked up after him or prior to him but claimed that nothing was recovered from either of them. This accused opted not to lead any defence evidence in his favour.
5. I have heard learned prosecutor for the state; Learned counsel Sh.
Vishwaranjan for accused Ravinder; and Sh. Ravi Soni for accused Mohan.
6. Perusal of the testimony of recovery witnesses and other prosecution witnesses would reveal that the prosecution witnesses have corroborated each other on material particulars of the matter and nothing material could be brought out in the cross examination of the prosecution witnesses to impeach the creditworthiness or trustworthiness of the witnesses. All the prosecution witnesses have supported the case of prosecution in Toto. The recovery witnesses have consistently deposed that the accused were apprehended at the spot and total 25 kg of 'Opium' was recovered from them, which was seized after drawing samples. They have deposed consistently that FSL form SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 10 of 37 11 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 was 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-2, 6, 8 & PW-10 is believable and trustworthy. The testimony of other prosecution witnesses is also in lines to the case of prosecution. PW-2, 3, 8 & 10 have proved compliance of Section 42 & Section 57 of NDPS Act within the stipulated period. The FSL result clearly establishes that the material recovered was indeed 'Opium'
7. Learned counsel for the accused, attacked the case of prosecution on the ground that in the rukka it is mentioned that at 6:30 PM Insp. Rajesh had requested the duty officer to depute PW-10 SI Shiv Darshan as the subsequent investigating officer, whereas, in the FIR the time of receipt of information is mentioned as 8:10 PM.
7.1. There is no force in this contention for the reason that the information which was given at 6:30 PM was not to the police station crime branch Nehru Place, but this information was given by Insp. Rajesh to the office of SIT which was located in sector 18, Rohini, Delhi, and was thus a different office altogether. The argument that the duty officer of the office of SIT, Sector 18, Rohini, Delhi, did not step into the witness box, pales into insignificance for the reason that PW- 10 SI Shiv Darshan as well as PW-8 Insp. Rajesh proved the fact that pursuant to the request of Insp. Rajesh, PW-10 was sent to the spot from the SIT office. The testimony of PW-8 & 10 also finds support from the testimony of other recovery SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 11 of 37 12 witnesses, who also confirmed that PW-8 had requested the SIT office to depute PW-10 as the further investigating officer and thereafter PW- 10 reached the spot. Even otherwise also the concerned duty officer in SIT office recorded a DD entry no 17 to this effect, which has been proved as Ex PW-10/X-3. Thus there is a documentary evidence also to prove this fact.
8. It is next argued by the accused that the entire case of the prosecution becomes unbelievable and untrustworthy for the reason that the name of the subsequent investigating officer finds mentioned in the rukka itself, which was prepared prior to FIR.
8.1. Again there is no force in this contention for the reason that Insp. Rajesh PW-8 was a senior member in the raiding team and he was present at the spot. He was a senior officer to the initial or the subsequent investigating officers, i.e., PW-2 or PW-10. It was within the competence of Insp. Rajesh to appoint the subsequent investigating officer and when in exercise of this power as a senior member of SIT, Insp. Rajesh appointed PW-10 as the further investigating officer, nothing suspicious can be read in this act of PW-8.
9. It is next argued by the accused that there is an interpolation on the time which finds mentioned at endorsement on rukka made by PW-5 HC Ashok Kumar, and the time has been changed from 8:30 PM to 8:10 PM.
9.1. Perusal of the endorsement on rukka Exhibit PW-5/B indeed points out that there is an overwriting on the time of DD number 12. However no importance can be given to such minor overwriting on the time, particularly when the said DD number 12, registered at 8:10 PM, itself SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 12 of 37 13 has been proved in the court as Exhibit PW-5/C. Exhibit PW-5/C is in fact photocopy of the concerned relevant page of the concerned DD register containing the DD entry number 12. This DD entry number 12 was registered when the rukka was received in the police station crime branch Nehru place at 8:10 PM and, when recording of the FIR commenced on the computer. The same time is reflected in the FIR Exhibit PW-5/A also. For those reasons no weight can be attached to minor overwriting on the time and it appears to be a result of clerical error by PW-5 while making an endorsement on Rukka, and nothing more.
10. It is next argued by the accused that in fact the DD number 12 is a forged entry in the relevant DD register. In this regard it is argued that the document which is proved as Exhibit PW-5/C materially differs from the document which is proved as Exhibit PW-10/X-1.
10.1. Again this argument is fallacious for the reason that these two DD entries though bears the same number, that is number 12, but both these DD entries were registered in two separate offices, at different times and therefore the contents of both these DD's materially differs. Exhibit PW-5/C was registered when rukka was received in police station crime branch, Nehru Place at 8:10 PM, whereas, the another DD number 12, which is proved as Exhibit PW-10/X-1, was registered at 2 PM on the date of incident when the raiding team left the office of SIT crime branch, Sector 18, Rohini, Delhi. Since police station crime branch Nehru place and office of SIT crime branch, sector 18, Rohini, Delhi, are two different offices and these two DD entries were entered qua SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 13 of 37 14 separate facts, therefore, there can be no comparison between these two DDs in order to determine whether they are forged or not.
11. It is also argued that DD number 12, 20 and 17, Exhibit PW-10/X-1, X-2 and X-3 were not dispatched to any senior police officers and therefore these documents should be held to be not proved in accordance with law.
11.1. Law does not require any of these DD entries to be submitted to the senior police officers. Under section 42 and 57 of NDPS Act, the reports mentioned in those provisions have to be forwarded to immediate superior police official, which in this case has indeed been complied with. DD number 12 simply records the departure entry of the raiding team from the office of SIT crime branch to the spot. DD number 20 is regarding arrival of the subsequent investigating officer along with Ct. Kaushal and Ct. Neeraj in the office of SIT crime branch at 2 am in the midnight. And, DD number 17 is regarding the information given by inspector Rajesh through telephone to the duty officer of SIT crime branch regarding recovery effected from the two accused of this case at the spot and regarding deputing PW-10 SI Shiv Darshan as subsequent investigating officer. None of these three DD's fall within the ambit of section 42 or 57 of NDPS Act and therefore none of them was required to be submitted to the senior police officers.
12. It is also argued that the original daily diary registers were not produced in the court at the time of exhibiting of these three documents.
12.1. But then the accused did not raise any objection at the time when these documents were being exhibited in the court as to the mode of proof of these documents and therefore this contention cannot be allowed to be SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 14 of 37 15 raised now. When the objection is directed towards the mode of proof of a document alleging the same to be irregular or insufficient, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. It is a rule of fair play. Because, an objection, if taken at the appropriate point of time, would have enabled the prosecution to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the accused who were entitled to object allowed the prosecution to act on an assumption that the accused are not serious about the mode of proof. A prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence.
SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 15 of 37 16
13. It is next argued by the accused that the signatures of the Addl DCP, existing on Exhibit PW-10/X-1, 10/X-2 and 10/X-3 differs materially, inter se, as also from the signatures of the Addl DCP on other documents and therefore all these documents should be held to be forged.
13.1. No weightage can be given to this contention also, for the simple reason that neither any such suggestion was put to any of the prosecution witnesses during their cross examination nor accused thought it proper to summon the concerned Addl. DCP at any stage of the proceeding to prove that the signatures existing on these documents are not of the Addl. DCP. I do not see any material difference in the signatures of Addl DCP on these documents. When these documents were exhibited in the examination in chief of PW-10, no objection whatsoever was raised as to the mode of proof of these documents and therefore this contention cannot be allowed at this stage.
14. It is next argued by the accused that a portion on the top corner of the page on which rukka was prepared was left blank which suggest that it was not prepared at the spot but was prepared sometime later.
14.1. Again this contention is nothing but fallacious for the reason that many police officials note down the documents with a margin left for the purposes of stapling, poking or putting a thread, which is usually done on the files. In any case no question to this effect was asked in the cross examination of the initial investigating officer PW-2 or any other witnesses and therefore this argument also has to be rejected.
SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 16 of 37 17 14.2. Learned counsel for the accused argued that there is non-compliance of section 42 & 57 of NDPS Act. He argues that PW-3 ASI Subhash was not competent to prove the reports and in absence of examination of the Addl DCP concerned sufficient compliance of section 42 & 57 of NDPS Act has not been proved by the prosecution.
14.3. No doubt the Addl DCP, to whom those reports were addressed and who signed the reports, has not been examined in the present matter. But when PW-3 was examined he deposed that the reports were put up before the Addl DCP who signed the same. In the cross examination of PW-3 there is no suggestion given by the accused that the reports do not contain signatures of the Addl DCP or that signatures of Addl DCP on the reports Ex PW-3/B, D &F were forged. There is no suggestion at all to PW-3 that the Addl DCP did not see or sign those reports. In such circumstances when the accused did not dispute signatures of the Addl DCP on the reports during cross examination of PW-3 the prosecution was within its rights to assume that the signatures of Addl DCP on the reports were not denied by the accused. Had the accused disputed those signatures in the cross examination, the prosecution would have had an opportunity to examine the Addl DCP.
14.4. Even otherwise under section 42 & 57 of NDPS Act all that is required is that the reports under those two provisions should be given to immediate superior official, 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 contraband was seized by PW-2 SI Sunil and the accused was arrested by PW-10 ASI Shiv Darshan. Both these officers SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 17 of 37 18 were subordinate to PW-8 Inspector Rajesh. Both these witnesses deposed that they submitted their respective reports under section 42 & 57 of NDPS Act to PW-8 Inspector Rajesh who signed the same and forwarded it to the Addl DCP. As on the date when the reports were tendered by PW-2 & 10 to PW-8, both of them were subordinate police officers to PW-8. Thus the moment these two officers, PW-2 & PW-10, tendered their respective reports to PW-8, sufficient compliance of section 42 & 57 of NDPS Act was made. It is not in dispute in the present case that the reports were furnished within the periods stipulated under section 42 & 57 of NDPS Act. Therefore this contention of accused has to be rejected.
15. It is next argued that in the report under section 57 of NDPS Act Exhibit PW- 3/F given by the subsequent investigating officer ASI Shiv Darshan there is an interpolation on the date under the signature of Insp Rajesh from 19th of November 2010 to 11th of November 2010.
15.1. Indeed there is an overwriting on the date mentioned under the signature of Insp Rajesh, but on this very document, at two other places the date is clearly mentioned as that of 11th of November 2010, by ASI Shiv Darshan under his signatures and also by the Addl DCP under his signatures. The existence of other two dates on this document as 11th of November 2010 clearly suggest that there was a clerical error by Insp. Rajesh in noting down the date under his signatures, which he corrected immediately. Even otherwise this document was received in the office of Addl DCP on 11th of November 2010 itself and this fact is proved by PW- 3 ASI Subhash who was posted in the office of Addl DCP at the relevant time. This fact rules out that the document was prepared on 19th of SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 18 of 37 19 November 2010 and it was then interpolated to one as prepared on 11th of November 2010. Even otherwise in the testimony of PW-8 Insp. Rajesh and in the testimony of PW-10 ASI Shiv Darshan they have clearly deposed that this report was prepared and signed on 11th of November 2010.
16. It is next argued by the accused that there is non-compliance of section 50 of NDPS Act.
16.1. In the present case, admittedly, the contraband was not recovered from the person of accused, but was recovered from a gunny bag carried by the accused in the car. For that reason section 50 of NDPS Act is not applicable in the present matter. Law in this regard is no more res Integra.
17. It is next argued by 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 contraband was seized.
17.1. No doubt the accused and the case property were not produced before the officer-in-charge of the nearest local police station, within the jurisdiction of which arrest and seizure was made. 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, which at that time was located at Nehru Place. The SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 19 of 37 20 SHO of police station crime branch has been examined as PW-11, namely, Inspector Kuldeep. PW-11 & PW-6, both deposed that the case property was taken to the officer-in-charge of the police station crime branch, i.e. PW-11, without any unnecessary delay. In my considered opinion, so far as the case property is concerned, this was sufficient compliance of section 52 of NDPS Act and it was not necessary that the case property had to be produced before the local police station only. Though the accused was not produced before the officer-in-charge of local police station or the police station crime branch, but 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 of accused also has to be rejected.
18. It is next argued by the accused that when the case property was produced for the first time in the testimony of PW-6, one of the seals on the main parcel was not legible and this fact must be read in favour of the accused.
18.1. Perusal of the testimony of PW-6 would reveal that when the case property was produced for the first time in the court, in the testimony of this witness on 22nd of September 2011, it was duly sealed with two seals. The seal impression of one of the seal was clearly legible and it was of SKS. The seal impression of the second seal was however not legible. But when the case property was produced in the court, the court specifically observed that the parcel cannot be opened without breaking both the seals. Thereby meaning that the case property was intact and there was no scope of its tampering.
SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 20 of 37 21
19. It is also argued by the accused that when the container was produced in the court, the lid of the container could be easily opened after removing the doctor's tape and therefore there was every possibility of tampering with the case property.
19.1. There is no force in this contention either. The case property was not sealed on the lid of the container. The lid of the container was closed at the spot with the help of doctor's tape and thereafter it was kept in the gunny bag and then the gunny bag was sealed, which when produced in the court was indeed appropriately sealed.
20. It is next argued by the accused that although the prosecution witnesses claimed that the sample drawn at the spot, out of the recovered 'Opium' was 100 grams, whereas, the weight of the sample which was received in the laboratory measured less than 100 grams, and this fact suggest that the case property was tampered with.
20.1. Perusal of the FSL result Exhibit PW- 10/X would reveal that the weight of the sample 'Opium' received in the Lab was 96.6 g along with the polythene pouch. The weight of the sample drawn at the spot was 100 grams along with the polythene. The difference is only marginal and not substantial to create doubt that the case property was tampered with. This difference of 3.4 g can be a result of difference in the calibration of the two weighing machines that is the one which was used by the investigating officer at the spot and another which was used by the concerned official in the laboratory. This marginal difference can also be a result of natural change in the characteristics of 'Opium' between the time of recovery and the date of examination, which was more than one month.
SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 21 of 37 22 20.2. Ravinder placed reliance upon the case of Pappu versus State of Rajasthan 2006 (3) JCC (narcotics) 126, wherein, the variation in the weight of the sample sent to the laboratory was held to be sufficient enough to render the case of prosecution as doubtful.
20.3. In that case the difference in the weight of the sample was substantial, as the sample drawn was of 250 g but the sample which was received in the lab was merely 43 g, i.e., there was a difference of more than 200 g in the sample weight and therefore it was substantial. In the present matter the difference in the weight was marginal that is 3.4 g only and therefore the judgment relied upon by the accused does not help his case.
21. It is next argued by the accused that there was a delay in sending the sample parcel to the FSL and the sample was not sent to the lab within 72 hours, as required under the guidelines of the Narcotics Control Bureau.
21.1. Recovery of contraband in this case was effected on 10th of November 2010, whereas, the sample parcel was sent to the laboratory only on 19th of November 2010. But the question is whether this delay in sending sample to the laboratory, without there being any evidence of tampering with the case property, can be termed as fatal to the case of prosecution. In my considered opinion the answer ought to be in negative, for the reason that the prosecution witnesses have established the complete Link evidence, which proves beyond reasonable doubt that when the sample was sent to the laboratory it was duly sealed with the seals of the initial investigating officer as well as the SHO and the FSL form was also sent along with it. It has also been satisfactorily proved SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 22 of 37 23 that there was no tampering with the sample in any manner from the time of seizure to the time it was received in the Lab. PW-1 Ct. Kaushal deposed that the sample parcel was duly sealed when it was taken by him from the malkhana to the laboratory along with the FSL form. Testimony of PW-4 HC Jag Narayan also corroborates the testimony of PW-1 in this regard. The fact that the sample parcel was duly sealed when received in the Lab is also supported from the FSL result which is proved as Exhibit PW-10/X. In the FSL result it is specifically mentioned that when the parcel was received in the laboratory and it was tested, it was duly sealed with the seals of SKS and KSY, and also that the seals were tallied with the specimen seals on the FSL form. Therefore in absence of any evidence to suggest that the case property was tampered with in any manner, mere delay in sending the sample cannot be fatal to the case of prosecution.
21.2. On examination of the entire material, it is clear that there is sufficient evidence produced by the prosecution regarding the completion of link evidence. 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. In Balbir Kaur v. State of Punjab (2009) 15 SCC 795; State of Gujarat v. Ismail U Haji, 2003 (12) SCC 291; State of Orissa v. Kanduri Sahoo, 2004 (1) SCC 337; State of Punjab v. Lakhwinder SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 23 of 37 24 Singh and Anr., 2010 (4) SCC 402, it is held that the delay in sending parcels to the CFSL is not always fatal.
21.3. Learned counsel for Ravinder relied upon the case of Gujrant Singh versus State of Punjab 2007 (4) JCC (narcotics) 181, wherein, the accused was acquitted as there was delay of 14 days in sending of samples to the chemical Examiner, and also, because the seal was not handed over to any independent witness and the case property was not produced before the court at the time of producing the accused for remand.
21.4. The said case is clearly distinguishable for the reason that in that case it was not proved to the satisfaction of the court that the FSL form was prepared at the spot or that it was deposited with the malkhana along with the case property. In the present case, the prosecution witnesses have proved preparation of the FSL form at the spot; its deposition in Malkhana along with the case property and; also that the FSL form was sent from the malkhana to the laboratory along with the sample parcel. There is no doubt as to the preparation of the FSL form, in the present matter. Merely because the seal after use was not handed over to independent public witnesses cannot be a ground to throw out the case of prosecution. In any case the prosecution witnesses deposed that they made attempts to join independent witnesses but no one from public agreed to join the proceedings. In any case in the present matter prosecution witnesses have deposed that the seal after its use was handed over to ASI Harcharan Singh, and ASI Harcharan Singh deposed that he returned the seal to the investigating officer only on 19th SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 24 of 37 25 of November 2011, that is the date when the sample parcel was sent to the laboratory from the Malkhana.
21.5. Ravinder next relied upon the case of Buta Singh versus State of Punjab 2006 (1) JCC (narcotics) 62, wherein, a delay of eight days in dispatch of samples to the FSL for chemical examination was held to be unexplained in the facts and circumstances of that case.
21.6. The said judgment is also distinguishable since in that case, besides the delay, the recovery of contraband was effected from an open space and mere presence of the accused near the place of recovery was held to be not sufficient to prove that he was in possession of the contraband.
21.7. Ravinder also relied upon the case of Balban Singh versus State 2008 VII Apex decision (Delhi) 52, to argue that the delay in sending sample must be held as fatal to the case of prosecution.
21.8. The said case is again clearly distinguishable on the facts as in that case the iron box which was produced in the court had its locks already opened and also one of the prosecution witnesses was unable to say if the iron box brought to the court was the same which was seized from the accused. Because the locks were already opened, the case property was held to be not properly kept before its production in the court. Even the witnesses did not support the case of prosecution on crucial aspect of sealing the sample. In those circumstances it was held that the prosecution was not able to satisfactorily establish that the seized sample was preserved in proper manner in the malkhana and the delay of one and half months in sending the sample for testing was held crucial. In the present case there is no such evidence to suggest any kind of tampering with the case property.
SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 25 of 37 26 21.9. Ravinder also relied upon the case of Matloob versus State 1997 IV Apex decision (Delhi), which again is clearly distinguishable. In that case there was delay of one month in sending the samples to the examiner coupled with the fact that the evidence clearly proved that the FSL form remained with the investigating officer along with the seal, and therefore the case of prosecution was held to be doubtful. In the present case the FSL form was not only deposited along with the case property in the malkhana but it was also sent from the malkhana to the laboratory along with the sample parcel and, therefore, the case of Matloob does not assist the accused in any manner.
22. It is next argued by the accused that the FSL result of the present case was ready in the laboratory on 23rd of December 2010 yet it was not received in the malkhana till 27th of January 2011 and this delay remained unexplained.
22.1. This argument is also absolutely without any force as this delay could be a result of various factors, including the fact that no intimation was sent by the laboratory to the concerned police station that the result was ready. In any case when the sample parcel was received in the laboratory in due condition and it was examined, mere delay in sending of the FSL result to the concerned police station does not affect the trial in any manner.
23. It is next argued by the accused that there are two photocopies of the road certificate Exhibit PW- 4/D available on the file and both these copies of road certificates materially differs.
23.1. Except the fact that while photocopying, the font of the document differs;
there is absolutely no difference either in the handwriting or in any other SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 26 of 37 27 thing, and thus this contention has to be rejected. One copy appears to have been obtained from the carbon copy of the road certificate and the other from the original one, therefore the font of the document differs in thickness, and nothing else.
24. It is also argued by the accused that there is a difference of colour of 'Opium' as noticed in the laboratory and as described by the prosecution witnesses to have been recovered from the two accused.
24.1. In the FSL result the colour of substance has been described as dark brown whereas the prosecution witnesses have described the colour of substance as blackish brownish coloured. Many people would so describe the same colour in two different manners and therefore no unnecessary weight can be given to this contention.
24.2. Similarly the contention that whether the substance was semi solid substance or sticky substance or viscous substance, doesn't has any force.
25. It is also argued by the accused that PW-8 Insp. Rajesh described the colour of the car as grey coloured instead of silver colour and described the description of the car as 'Tata Indica' instead of 'Tata Indigo' car.
25.1. There is no force in this contention also for the reason that PW-8 himself clarified that the car was in fact of silver colour. So far as the model of car as to whether it was 'Tata Indica' or 'Tata Indigo' car is concerned, it might be a result of typographical error in the examination in Chief of PW-8. In the cross examination, PW-8 specifically mentioned that the car was 'Indigo' and not 'Indica'. All other witnesses have identified the car as 'Tata Indigo' car. In any case it is not in dispute that the said car SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 27 of 37 28 was owned by accused Ravinder and the registration certificate of the car exists in the name of Ravinder. Identity of car was not disputed by Ravinder in the trial of this case therefore this contention needs no further discussion.
26. It is next argued by the accused that there are contradictions in the testimony of prosecution witnesses.
26.1. Perusal of the testimonies of prosecution witnesses would reveal that there are no material contradictions. The contradictions pointed out by the accused as to; the minor difference in distance of the spot from the office; the minor difference of time taken by the raiding team to reach the spot; how many pages of FSL form were prepared at the spot; who wrote the FSL form or the rukka or other documents; whether Ct. Neeraj left the spot along with the case property and rukka, at 7 PM or 7:15 PM; whether keys of the car were handed over to the subsequent investigating officer by the initial investigating officer, are all minor and trivial contradictions and cannot be termed as substantial to doubt the case of prosecution or to doubt the trustworthiness of the witnesses. These minor contradictions can be for a variety of reasons such as lack of power of retention of those facts and lack of power of observation of those facts. Those capabilities vary from person to person. In my considered opinion none of the contradictions pointed out by the accused can be termed as material to view the case of prosecution with suspicion.
27. It is also argued that no public witness has been joined by the prosecution and even the concerned street vendor from whom the tub was brought by PW-6 Ct. Neeraj has not been joined as a witness.
SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 28 of 37 29 27.1. 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 looked with suspicion. In Sunil Kumar v. State, 1990 Cr.L.J. 414; Appabhai and Anr. v. State of Gujrat, 1998 (supp.) SCC 24; P.P. Beeran v. State of Kerala, 2001 (9) SCC 571; M. Prabhulal v. The Assistant Director, DRI, 2003 (8) SCC 44; State of Haryana v. Mai Ram, 2008 (8) SCC 292 and; Jawahar v. State, 2007 (IV) AD (Del.) 210, it is observed that the public is reluctant to join and, in the absence of public witness, the police witness can be relied upon.
28. It is next argued that the source of contraband and the destination of contraband have not been properly investigated and despite the fact that the prosecution witnesses claim to have gone to Neemach in Madhya Pradesh yet they did not go to the civil hospital, even though its mention was there in the discloser statement of accused. Even if it is assumed that the investigating officer did not investigate the source and destination of contraband, 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.
29. It is also argued that in the testimony of PW-2 SI Sunil, the spot has been mentioned as Shahbad Dairy instead of Bhalaswa Dairy.
29.1. It is nothing more than a slip of tongue or a typographical error in the testimony of this witness. This witness PW-2 has proved the DD number 10, that is, the secret information which was reduced into writing by him and in which it was clearly mentioned that the spot was Bhalaswa Dairy SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 29 of 37 30 and not Shahbad dairy. Also, the other documents proved by this witness, including the rukka and the report under section 57 of NDPS Act, speak about Bhalaswa Dairy and not Shahbad Dairy. Therefore not much importance can be attached to this slip of tongue of this witness.
30. Though the two accused in their statement claimed that they were not apprehended from the spot and they were apprehended from Budpur village, where they had gone to attend a marriage, but neither of them examined any witness from the said village, any of the guest who was present in the marriage or anyone from the family members of the bride or bridegroom to prove the fact that either of the two accused was invited to the marriage or either of them was present in the village on the date of incident. Even the marriage invitation card has not been proved. In his statement accused Ravinder specifically stated that he had gone to attend the marriage along with one Ranbir, wife of Ranbir and, son of Ranbir. But strangely he did not thought it proper to examine any one of them to prove that he had gone to attend the marriage to Budpur village on the date of incident or that he was picked up by the police from the said village. Ravinder claimed in his statement that few of the guests of marriage resisted when the police tried to take him away, yet he did not examine anybody to support the plea. None of the villager, guest or host of marriage informed any superior police officer about false implication of accused. They did not seek any remedy from concerned authorities.
31. Rather accused Ravinder claimed that he did not even knew his co-
accused Mohan from prior to the present case. On the other hand accused Mohan specifically claimed that he knew Ravinder from before and on the date of incident he had gone to the house Ravinder in his SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 30 of 37 31 village on the request of Ravinder to drive his car. These two versions coupled with the fact that neither of the two accused examined any of the independent witnesses from the marriage or the Budpur village to prove that they were present in the marriage procession or that they were picked up from village Budpur goes to show that the plea taken up by the two accused is nothing but false.
32. Also the two accused claimed that they have been falsely implicated in the present case by the police officials, but neither of them came out with any reason as to why they would be falsely implicated by the police. The two accused do 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 were falsely implicated by the police, without any rhyme or reason.
33. In the light of the evidence on record, the prosecution witnesses have succeeded in proving the case that the two accused were apprehended from the spot on the date and time as claimed by the prosecution witnesses, and from the car 25 kg of 'Opium' was recovered. The prosecution witnesses have successfully proved that accused Ravinder was holding the said gunny bag on the front passenger seat of the car at the time of apprehension and at that time accused Mohan was driving the car.
34. It is not a case where Mohan was merely a driver of the car and was not aware of the contents of the gunny bag. Mohan was not driving any commercial vehicle as a taxi for Ravinder so that an inference can be drawn that he was unaware of the contents of the gunny bag. Rather he SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 31 of 37 32 specifically went to the house of Ravinder, as per his own version, and he drove the car of Ravinder from his house, which fact clearly suggests that Mohan was aware of the contents of the bag. It is also not a case that the bag containing 'Opium' was not visible to Mohan or was concealed in the car. Rather it was clearly visible to him.
35. Thus, when the possession of 'Opium' in the car is proved, and it is also proved that the accused Mohan Kumar was driving the car, a presumption U/s 35 of NDPS Act, 1985 arises against the accused. Section 35 of NDPS Act provides that the court shall presume existence of such mental state which is required for an offence under this Act and it shall be a defence of accused, to be proved by him, that he had no such mental state with respect to the act charged as an offence. Explanation appended to Section 35 of NDPS Act provides, that culpable mental state includes intention, motive, knowledge of the fact and belief in, or reason to believe, a fact. Sub Section 2 of this Section also provides that in order to prove lack of culpable mental state, it has to be proved (by an accused) beyond reasonable doubt and not merely by establishing it by preponderance of probability.
36. Under Section 18 of the Act possession has to be a conscious possession. Section 35 of the Act recognizes that once possession is established, the Court can presume that the accused had a culpable mental state, meaning thereby conscious possession. Under section 35 of the Act presumption of culpable mental state of mind is a rebuttable presumption. In defence, the accused has every right to prove that he had no such mental state. Conscious possession need not be physical possession. It can be constructive possession also. Once possession is SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 32 of 37 33 proved, the person who claims it to be not in conscious possession has to prove as to how he came in possession, as the said possession was within his special knowledge. The person who claims that he was not in conscious possession has to establish it.
37. Presumption of conscious possession is available under Section 54 of the Act also, which provides that accused may be presumed to have committed the offence unless he, satisfactorily, accounts for the possession of contraband.
38. In the case of Dehal Singh v. State of Himachal Pradesh AIR 2010 SUPREME COURT 3594, two accused were found travelling in the car from which 'Charas' was recovered and, therefore, they were held to be in possession thereof. They knew each other. They were not travelling in a public transport vehicle. It was held that a distinction has to be made between accused travelling by public transport vehicle and private vehicle. Relying upon the case of Madan Lal and another v. State of H.P., 2003 (7) SCC 465 : (AIR 2003 SC 3642 : 2003 AIR SCW 3969), it has been held as follows :
"26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles."
39. In the present case, except claiming that Mohan Kumar came to drive the car of Ravinder on his request, nothing at all is put forth to prove lack of culpable mental state. Mohan admitted that he knew Ravinder prior to SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 33 of 37 34 the date of incident. He also admitted driving the car on the date of incident. He was not driving a taxi. It is also not proved that Ravinder was unable to drive the car himself for any reason and therefore Mohan merely went to drive the car. In such circumstances, accused Mohan Kumar fails to discharge the burden on him U/s 35 NDPS Act.
40. Accused Mohan has relied upon the case of Karan Singh versus The State (NCT of Delhi) 2006 (2) JCC (narcotics) 83, in which except the secret information the prosecution was unable to furnish any evidence to link up the accused with the recovery of contraband from co-accused. In that case it was held that the secret information was inadmissible unless and until the provider of such information was examined in the court and based on the said reasoning bail was granted to the accused.
41. In the present matter, it is not that only secret information is available against Mohan. Rather Mohan was physically found present at the spot at the time of recovery along with the co-accused and admittedly he was driving the car on the date of incident. Mohan, in his statement under section 313 Cr. P. C., specifically, admitted that on the date of incident he came to the house of Ravinder on his request to drive his car and that he drove the car of Ravinder.
42. The long & short of the matter is that the prosecution has established beyond reasonable doubt that total 25 kg of 'Opium' was recovered from the car on the date of incident when both the accused were in the car. Accordingly, both the accused were indeed in conscious possession of 25 kg of 'Opium' and the prosecution succeeds in proving its case that both the accused were possessing 'Opium', totaling 25 kg. Accordingly, both the accused are held guilty and convicted U/s 18 of NDPS Act.
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43. The question however, is as to whether the recovered quantity was small, intermediate or commercial quantity.
43.1. Section 18 of the NDPS Act provides for proportionate sentence for possessing small, intermediate and commercial quantities of offending material. 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. As per Entry 92 of the Notification dated 19-10-2001, which deals with Opium, small quantity has been mentioned as 25 gm. and commercial quantity has been mentioned as 2.5 kg.
43.2. In the present case the relevant part of the FSL result Exhibit PW-10/X, reads as under:
"(ii) on physical examination the exhibit 'A' gave characteristics odour of opium.
(iii) Chemical tests and chromatographic analysis gave positive results for Morphine, Codeine, Thebaine, Papaverine & Narcotine which are the main constituents of opium.
(iv) ....... percentage of Morphine was found to be 2.4 %.
(v) .......found to be the opium."
43.3. 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;"
SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 35 of 37 36 43.4. 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 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.
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44. Thus the two accused being in possession of commercial quantity of 'Opium' violated the provisions of Section 8 of the NDPS Act and are liable to be convicted under Section 18(b) of the NDPS Act.
45. So far as charge under section 25 of NDPS Act against Ravinder is concerned, he being owner and in possession of the car in question at the time of recovery of contraband, cannot be said to have allowed the car to be used for possession or transportation of the contraband by his co-accused Mohan. He himself along with Mohan used the car for committing offence under the NDPS Act. Therefore necessary ingredients of section 25 of the Act are not fulfilled. Ravinder is acquitted for offence under section 25 of NDPS Act.
46. Thus the two accused Ravinder and Mohan being in possession of commercial quantity of 'Opium' are convicted under Section 18(b) of the NDPS Act.
Announced in open Court on 26th August, 2013.
Dig Vinay Singh ASJ/Special Judge (NDPS) Rohini Courts : Delhi SC no. 39/11 FIR no. 149/10 State vs. Ravinder & anr. Dtd; 26-08-2013 Pg.. 37 of 37