Delhi District Court
State vs Sagar Bahadur on 18 January, 2011
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus Sagar Bahadur
S/o Sh. Bal Bahadur
R/o A-132, Nizam Nagar,
Nizamuddin Basti,
New Delhi.
SC No. : 50A/07
FIR No. : 257/07
U/S : 21 NDPS Act
PS : Hauz Khas
Date of institution : 14.05.2007
Date of reserving judgement : 14.01.2011
Date of pronouncement : 18.01.2011
J U D G M E N T
The accused has been sent to face trial by SHO PS Hauz Khas on allegations that on 24.04.2007 at about 9.00 pm, he was apprehended from the service road, 100 mtrs. ahead of the Jagan Nath Temple, towards village Hauz Khas, New Delhi, withing the jurisdiction of PS Hauz Khas, when he was found to be in possession of 4.500 kg of Ganja, in contravention of the provisions of the NDPS Act.
2. The prosecution story, in brief, is that on 24.04.2007 at about 9.00 pm the police party consisting of SI R.D. Pandey, HC Islamuddin and Ct. Yasin Khan of PS Hauz SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 2 Khas had seen a person coming from the side of Jagan Nath Temple and going towards the Hauz Khas village and he was holding one big polythene bag in his right hand. On seeing the police party in official dress the above person had become frightened and on suspicion he was stopped and apprehended by the police party and on enquiry his name was revealed to be the accused Sagar Bahadur, a resident of Nizamuddin, New Delhi. On checking of the above polythene bag being held by the accused, the same was found to be containing a substance which was identified as Ganja from its smell, appearance and enquiry from the accused. The above SI had requested few passersby to join the proceedings, but none agreed. The local SHO was intimated on telephone and he had reached at the spot and then in the presence of the SHO and suspecting the recovery of some further contraband substance from the above accused, a notice U/S 50 NDPS Act was served upon the accused, but nothing incriminating could be recovered further from him. The total weight of the above Ganja recovered from the accused was found to be 4.500 kg. The proceedings with regard to the drawing of samples, preparing pullandas of the samples and the remaining case property and their sealing and seizure etc. were conducted at the spot and the sealed pullandas of case property and samples, along with the FSL form and a copy of seizure memo, were handed over to the SHO for deposit in the police malkhana and a rukka was sent to the PS through Ct. Yasin Khan for registration of a case U/S 21 of the NDPS Act and the same had resulted into the SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 3 registration of this FIR No. 257/07. Further investigation in the case was assigned to SI Pooran Singh, who had reached at the spot, prepared the site plan, arrested the accused and had also subsequently sent the report U/S 57 NDPS Act to his superior officers, got the sample examined from the FSL and had subsequently prepared the chargesheet after completing the other formalities of investigation and recording of the statements of witnesses.
3. A chargesheet for the offence U/S 21 of the NDPS Act was filed against the accused on 14.05.2007 and cognizance thereof was taken. However, a prima facie case for offence U/S 20 (b)(ii)(B) of the NDPS Act only was found to had been made out against the accused and hence a charge for the said offence was also framed against him by this court on 24.05.2008, as the above quantity of Ganja possessed by the accused was a ' s emi-commercial quantity' under the said Act.
4. The prosecution in support of its case has examined total 11 witnesses on record and their names and the purpose of examination etc. is being stated herein below :-
(i) PW1 Insp. S.P. Kukreti was posted as SHO, PS Hauz Khas on 24.04.2007 and he has stated that on receiving message from SI R.D. Pandey regarding the apprehension of accused Sagar Bahadur with Ganja, he had reached at the spot SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 4 and thereafter the above SI had handed over him three parcels, consisting of one main parcel and two samples, with FSL form, duly sealed with the seal of ' R D ' and also a copy of the seizure memo regarding the recovery of 4.500 kg of Ganja. He had initialed the above seizure memo and had verified the above fact from the accused and had then affixed his seal of ' S P ' on all the three pullandas and the form FSL and then he had returned back to the PS and deposited the above articles in the malkhana after putting FIR number on the same. He had also lodged one DD No. 33A with regard to deposit of the above articles. On 25.04.2007, SI Pooran Singh had submitted a report U/S 57 NDPS Act to him, which he had sent to his senior officers and a copy of the same has been brought by him on record as Ex. PW1/A. Subsequently, he had also sent the samples to FSL for examination and had filed the charge sheet in the court.
(ii) PW2 HC Islamuddin is a witness of apprehension of the accused and recovery of the above contraband substance from him. He has stated that on 24.04.2007 he was on patrolling with SI R.D. Pandey and Ct. Yasin and were going to Jagan Nath Mandir from village Hauz Khas when at about 9.00 pm they had seen one person coming from the side of Hauz Khas village and going towards Jagan Nath Mandir and carrying a plastic / polythene bag in his hand. On seeing that police party that person felt frightened and in view of his above suspicious activities, he was stopped and had told SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 5 his name to be Sagar Bahadur on enquiry. SI R.D. Pandey had made further enquires from him about the above polythene bag and on checking thereof it was found to contain Ganja, as it appeared from its smell and appearance. SI R.D. Pandey had requested 5-6 passersby to join the proceedings, but no one agreed. SI R.D. Pandey had then given a notice U/S 50 NDPS Act to the accused to ascertain further possibility of Ganja and the accused was informed about his legal right that his search can be conducted in the presence of a Gazetted Officer or Magistrate and before giving his search he can also take the search of the police personnel.
(iii) It is also stated by this witness that SI R.D. Pandey informed SHO S.P. Kukreti and requested him to reach at the spot. The above SI had then weighed the recovered Ganja and it was found to be 4.5 kg, out of which two samples of 250 gms each were taken out and the same were converted into cloth parcels and marked as A1 & A2 and the remaining Ganja was also similarly converted into a cloth parcel and was marked as B. SI R.D. Pandey had completed form CFSL and then affixed his seal of ' R D ' on all the three parcels and form CFSL and had taken the same into possession vide memo Ex. PW2/A, which was signed by this witness. He has also stated that the seal after used was handed over to him and meanwhile SHO S.P. Kukreti also reached at the spot. SHO was briefed about the recovery of the above Ganja by the above SI and was also handed over all the three parcels, form CFSL and copy of the seizure memo SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 6 and the SHO had then put his initials on the seizure memo and had also affixed his own seal of ' S P ' on all the parcels and the form CFSL and then left the spot with the same.
(iv) It is further stated by PW2 that in the meanwhile SI R.D. Pandey had also prepared a rukka and handed over the same to Ct. Yasin Khan with directions to hand over it to the duty officer for registration of the case and accordingly this case FIR No. 257/07 was registered and further investigation was handed over to SI Pooran Singh, who had reached at the spot, along with Ct. Yasin Khan. SI R.D. Pandey had then handed over the custody of the accused and the relevant documents to SI Pooran Singh, who had prepared the site plan at the instance of SI R.D. Pandey, arrested the accused vide memo Ex. PW2/B and conducted his personal search vide memo Ex. PW2/C and both these memos had been witnessed by PW2. The accused was then got medically examined, taken to PS and was put into the lockup. The witness has identified the accused as well as the remnants of the above two samples taken at the spot as Ex. P1 & P2 and the remaining case property as Ex. P3. He has also identified the carbon copy of the notice U/S 50 NDPS Act as Ex. P4, which was recovered in the personal search of the accused.
(v) PW3 HC Hari Ram was the MHC(M) of the PS on that SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 7
day and with him the above three pullandas bearing seals of ' RD ' & ' SP ' , along with the form FSL and carbon copy of seizure memo, were deposited in the police malkhana vide entry at Srl. No. 1944 of his register No. 19. On the same day the personal search of the accused consisting of a carbon copy of the notice U/S 50 NDPS Act was also deposited with him. On 24.05.2007, he had sent the sample pullandas, along with form FSL and relevant documents to FSL through Ct. Pappu Ram vide RC No. 25/21 and Ct. Pappu Ram hand handed over the acknowledgment of deposit on RC to him back after doing the needful. On 24.08.2007 the remnant of the above sample and the FSL result were received by him and the remnant sample was kept in the malkhnana and FSL result was handed over to SI Pooran Singh. He has proved the relevant entires of his register No. 19 on record as Ex. PW3/A.
(vi) PW4 HC Pappu Ram (Constable at that time) has stated that on 24.05.2007 he was handed over two pullandas of this case by the MHC(M) and had taken the same to FSL, Rohini vide RC No. 25/21 and after depositing the same he had handed over the receipt thereof to the MHC(M). So long as the pullandas remained with him, nobody tempered with the same.
(vii) PW5 Ct. Yasin Khan is also a witness of recovery of the above Ganja from the accused and he has broadly deposed like PW2 HC Islamuddin regarding the apprehension of the SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 8 accused by the police party in the above suspicious circumstances and recovery of the Ganja from him. He has further deposed likewise regarding the service of a notice U/S 50 NDPS Act by the above SI to the accused, the arrival of the SHO on intimation, the weighing of the total Ganja and taking of two samples of 250 gms each from the same, the preparation of the above three pullandas, filling of form CFSL and the sealing and seizure etc. of the pullandas vide seizure memo Ex. PW2/A, to which he is also a witness. He has also deposed likewise about the affixing of the above seal of the SHO on the above pullandas etc. and has further stated that he had taken the rukka to the PS, got the case registered and reached back at the spot, along with SI Pooran Singh and then had also witnessed the arrest of the accused vide arrest memo Ex. PW2/B and his personal search vide memo Ex. PW2/C. He has also identified the above Exhibits P1, P2 & P3 during his statement in this court.
(viii) PW6 Ms. Shashi Bala, Senior Scientific Assistant, Biology, FSL, Rohini had examined the above two samples of this case vide her report Ex. PW6/A, wherein the same were identified to be Dried Indian Hemp, i.e. Cannabis Sativa.
(ix) PW7 HC Chander Singh was working as Duty Officer at PS Hauz Khas on 24.04.2007 and he had recorded the FIR of this case Ex. PW7/A on the basis of the above rukka sent by SI R.D. Pandey and brought by Ct. Yasin Khan. He had also SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 9 made one corresponding entry in the DD register at Srl. No. 32A in this regard and had made an endorsement to that effect on the original rukka.
(x) PW8 ASI Bijender Singh is a record witness and he has produced the original diary register of the office of ACP, Hauz Khas with regard to the receipt of the information U/S 57 NDPS Act in their office on 25.04.2007. He has stated that the above information was seen and endorsed by the then ACP and the original information has been brought by him on record as Ex. PW8/A and a copy of the diary register as Ex. PW8/B.
(xi) PW9 Insp. R.D. Pandey (SI at that time) is the initial IO of this case and he alongwith PW2 HC Islamuddin and PW5 Ct. Yasin Khan was on patrolling in the area at the relevant time of apprehension of the accused. He has also broadly deposed likewise the above two PWs regarding the arrival of the accused and his apprehension with the above contraband substance of 4 kg 500 gms, service of notice U/S 50 NDPS Act upon the accused, arrival of the SHO/Insp. S.P. Kukreti at the spot on his information, drawing of two samples of 250 gms each therefrom, the preparation of three separate pullandas in respect thereof and sealing of the same with the seal of ' R D ' & ' SP ' , filling of the CFSL form and seizure of the pullandas and CFSL form etc. vide memo Ex. PW2/A. He had then handed over the above three SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 10 pullandas, CFSL form and a copy of the seizure memo to the SHO for depositing the same in the malkhana and had also prepared the rukka Ex. PW9/A and had sent the same to the PS through Ct. Yasin Khan for registration of the case. He has also deposed regarding the arrival of SI Pooran Singh at the spot, along with Ct. Yasin Khan, handing over the accused and documents to him and preparation of the site plan Ex. PW9/B by the above SI on his pointing out. He has further identified the accused as well as the remnants of the above samples as Ex. P1 & P2 and the remaining case property/Ganja as Ex. P3.
(xii) PW10 SI Pooran Singh is the person to whom the investigation of this case was assigned after registration of the case. He had reached at the spot and had found the accused as well as SI Bir Singh present there. In the meanwhile, Ct. Sumit had also reached there and handed over to him the rukka and the copy of the FIR and SI Bir Singh had handed over to him the custody of the accused as well as the relevant documents. He had interrogated the accused and the accused confirmed the recovery of Ganja from him. He had then prepared the site plan Ex. PW5/A at the instance of SI Bir Singh, informed the accused about the grounds of his arrest vide Ex. PW4/D, arrested him vide arrest memo Ex. PW4/B and conducted his personal search vide memo Ex. PW4/C, in which the above cash amount and the original notice U/S 50 NDPS Act were recovered. He had then got the accused SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 11 medically examined and produced before the SHO for verification of the facts and then put in the lockup. He had also prepared the special report U/S 57 NDPS Act for his senior officers and a carbon copy thereof has been proved on record as Ex. PW5/B. Subsequently, he had also sent the sample pullanda to FSL, Rohini on 21.02.2007, through Ct. Rajesh Kumar, vide RC No. 166/21 and had subsequently prepared the challan after completing the necessary formalities and recording of statements of witnesses. He had also subsequently received the FSL results Ex. PW5/C & PW5/D and had filed the same in the court. He has also identified the above original notice U/S 50 NDPS Act Ex. PW5/E during his examination in the court.
(xiii) PW11 Sh. H.P.S. Cheema was posted as ACP, Hauz Khas on 25.04.2007 and on that day one information U/S 57 NDPS Act in this case was received in his office and after diary in the concerned register, the same was seen and endorsed by him at portion X on the above information Ex.PW8/A.
5. After the conclusion of the prosecution evidence the entire incriminating evidence brought by the prosecution on record was put to the accused and the same was denied by him to be incorrect. He has claimed himself to have been falsely implicated in this case after being lifted from his house, but however, no defence evidence was led by him.
SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 12
6. I have heard the arguments advanced by Sh. S.K. Raghuwanshi, Ld. Addl. PP for the State and Sh. Amit Raghav, Ld. Amicus Curiae for the accused and have also appreciated the evidence led on record and the other record of the case.
7. The first argument advanced by Ld. Amicus Curiae is that the depositions of only police witnesses are not reliable as the same are not supported by the depositions of any public or independent witness because no such witness has been joined by the IO at any stage of the investigation. However, a bare perusal of the depositions made by PW2 HC Islamuddin, PW5 Ct. Yasin Khan and PW9 Inspector R.D. Pandey reveal that the recovery of the above Ganja was effected from the possession of the accused Sagar Bahadur merely as a chance and it can be stated to be a ' chance recovery ' because the same was not effected on the basis of some prior or secret information or in a planned manner after constitution of a raiding team. The above three police officials have clearly stated that they were present at the spot when they had noticed the accused carrying a plastic/polythene bag in his hand. On apprehension of the accused on the ground of suspicion and on checking of the contents of the above polythene bag, the same was found to be containing Ganja. Hence, there was hardly any time available to these police officials for making any request to any public persons for joining them SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 13 in apprehension of the accused. As far as the non joining of the public witnesses after the apprehension of the accused is concerned, it has been specifically deposed by all of them that the IO/PW9 had requested 4/5/6 passersby to join the proceedings, but none had agreed for the same and had left the spot without disclosing their names and addresses. It is a fact of common knowledge that the public persons are always reluctant to join the police investigations because of the long drawn litigation as well as the harassment etc. which they may have to face in becoming party to witness such proceedings. Even otherwise, no fruitful purpose would have been served in joining the public witnesses at that stage for witnessing the writing work only as the recovery of the contraband substance had already been effected by them. The depositions made by PW2 PW5 and PW9/IO regarding the apprehension of the accused Sagar Bahadur and the recovery of the above Ganja from him cannot be doubted simply because they both are police officials as the presumption of honesty is also available to them as the same is available to any other officials and conviction can be based on the testimonies of such witnesses. Reference in this regard can be made to the cases of Parveen Kumar Vs State of Kar.-(2003) 12 SCC 199, Karamjeet Vs State - 2 003 Crl.L.J 2021 SC and Girja Pd. Vs State of MP - A IR 2007 (SC) 3106. Hence, in view of the above discussion and the prepositions of law as laid down in the above said cases, this argument of Ld. Defence SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 14 Counsel does not carry any weight.
8. The next argument advanced by Ld. Amicus Curiae is that the notice U/S 50 NDPS Act Ex. PW5/DA served upon the accused by the IO/PW9 is not valid and legal because the same was served upon the accused only after the search of the above polythene bag and recovery of the Ganja therefrom and the same was not served before the search of the said bag and before effecting recovery of Ganja and hence the accused is entitled to be acquitted for want of the compliance of the provisions of Section 50 NDPS Act. However, this argument of Ld. Amicus Curie is not sustainable in law because such a notice is required to be given only before effecting the search of the ' person ' of an accused and in the instant case the recovery of the above contraband substance effected from the above polythene bag being carried by the accused was only a chance recovery and it did not involve the search of his ' person ' and such notice was served upon the accused by the IO/PW9 before effecting the search of his ' person ' subsequently, though nothing incriminating could be recovered further from him. It is now well settled that Section 50 of the NDPS Act has got no applicability where the recovery of the contraband substance has been effected not from the person of an accused, but from a briefcase, suitcase, bag or thaila etc. being carried by the accused. Reference in this regard can be made to the cases of State SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 15 of H.P. Vs. Pawan Kumar - 2 005 (4) SCC 350, Madan Lal Vs State of H.P.-2003 Crl.L.J 3868 and Ajmer Singh Vs State of Haryana - 2 010 (2) SCR 785 (Crl. Appeal No. 436/09).
9. With regard to the above notice U/S 50 NDPS Act Ex.PW5/DA, it has also been argued by Ld. Amicus Curiae that PW-2 during his cross examination has admitted that the above notice do not contain the fact that the search of the police party was also offered to the accused before taking his search and hence the same is not legal and valid. It is observed that this fact is duly found incorporated in the above notice, though there is no requirement of the same as per the provisions of Section 50 NDPS Act and even the recovery witnesses have deposed specifically regarding the same. It has also been argued that the FIR number and the particulars of the case are written on the above notice Ex. PW5/DA and in view of the depositions made by PW5 as well as the IO/PW9 that the above notice is in the same form in which it was served upon the accused, it is clear that the above notice was prepared after the registration of the case and there is non compliance of the provisions of Section 50 0f NDPS Act. However, this argument of Ld. Amicus Curiae is also of no use as it has already been discussed above that the notice U/S 50 NDPS Act was not required to be given in this case as the recovery of the contraband substance was effected not from the ' person ' of the accused but from the SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 16 polythene bag carried by him and hence the above discrepancy, if any, in the above notice is liable to be ignored.
10. The Ld. Amicus Curiae has argued that no DD entry has been proved on record by the prosecution to justify the presence of the police party at the spot of apprehension of the accused and hence the depositions made by PW2, PW5 and PW9 / IO regarding the story of the prosecution pertaining to the apprehension of the accused and the recovery of the above contraband substance from him do not inspire any confidence and is not worthy of giving any credence. It is observed that though PW5 and PW9/IO have both deposed that a DD of departure was made at the Police Station regarding their leaving the police station for patrolling, but they have not been able to tell the number of that DD. However it has come on record during the depositions of PW2 as well as PW5 that they all had left the PS for patrolling at around 5 pm and they have further made on record consistent and corroborative depositions, along with the IO/PW9, regarding the apprehension of the accused from the above place and with the above contraband substance and hence the case of the prosecution cannot be thrown away merely because of the non production or non proof of a DD with regard to their departure from the PS. It has also been argued by Ld. Defence Counsel that during the depositions of PW1/SHO, it has come on record that he had also not lodged any DD entry before his proceeding for the spot on receiving telephonic SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 17 information about the incident from the IO/PW9. However, it is observed that PW1/SHO has also stated on record that at the time of receiving of the above information he was not present in the PS and hence, there was hardly any occasion for him to had made such an entry for his departure for the spot.
11. Ld. Defence Counsel has further argued that according to PW2 HC Islamuddin the FIR number appearing on the seizure memo Ex. PW2/A was put by PW9/IO even before receiving back the rukka, along with the endorsement of FIR on the same, and this fact makes the prosecution story to be doubtful as the FIR number should have not been known to the IO before the return of PW5 Ct. Yasin Khan with the original rukka and a copy of the FIR. In this regard also, it is observed that during his cross examination itself PW2 has also clarified that the FIR number on the above document was put by the IO/PW9 only after he had asked about the FIR number on telephone and hence, there is not found to be any discrepancy in the story of the prosecution in this regard. It is further found that during the cross examination of IO/PW9, Ld. Defence Counsel had also not put any question to him regarding the above aspect and had not sought any reply from the IO as to when or by whom the FIR number was added on the above document.
12. The next argument of the Ld. Defence Counsel is SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 18 that according to PW2 HC Islamuddin, the seal of the IO/PW9 after use was given to him and he had returned the same back to IO on the next date, but there is memo or document prepared or produced by the prosecution on record to show the handing over or the taking over back of the seal and hence, the depositions made by the above witness in this regard cannot be believed and the possibility of tempering with the case property and sample pullandas and misuse of the seal cannot be ruled out. In my view, this argument of Ld. Defence Counsel also is not of any help to the case of the accused because there is no requirement of law that any such memo is mandatorily required to be prepared at the time of handing over or returning back of the seal. The law does not even require the maintenance of any seal movement register or for handing over the seal to some independent witnesses. Reference in this regard can be made to the case of Siddiquia Vs. NCB-2007 Crl. L.J. 1471 of our own High Court wherein, apart from laying down the above prepositions of law, it was also held by the their Lordships that there mere possibility of misuse of seal does not cast doubt on the prosecution case when the samples and the case property were sealed at the spot and the same were found intact at the time of production of the case property in the court. In the instant case also, there is nothing on record to show or suggest that the case property or the sample of this case were ever tempered with since the proceedings at the spot and till the examination of the sample in the FSL and the SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 19 production of the case property in the Court.
13. One other discrepancy being pointed out by Ld. Amicus Curiae in the story of prosecution is that according to the rukka Ex. PW9/A and also the depositions made by the recovery witnesses, PW1/SHO Insp. S.P. Kukreti had reached at the spot before the above contraband substance was weighed by the IO and the entire work of taking samples therefrom and the sealing and seizure of pullandas etc. had taken at the spot in his presence. However, the SHO/PW1 in his statement made in this court has not made any such depositions and has simply stated that on his reaching at the spot SI R.D. Pandey/PW9 had handed over him three parcels, one being the main parcel and the two being sample parcels. In my view the above discrepancy in the story of prosecution can also not be given much weight because the arrival of the SHO/PW1 at the spot has been duly proved on record from the depositions made by all the above witnesses, including the SHO/PW1 himself, and it has also come on record in their depositions that after being entrusted with the above pullandas, along with FSL form and a copy of the seizure memo, he had affixed his own seal of ' S P ' on all the three pullandas and the FSL form and had also initialed the original seizure memo and verified the facts from the accused himself. His initials are also there on the above seizure memo. He had also then taken the above pullandas etc. to the PS and deposited the same in the police SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 20 malkhana.
14. PW2 HC Islamuddin, PW5 Ct. Yasin Khan and PW9/IO Insp. R.D. Pandey have all made consistent and corroborative depositions regarding the apprehension of the accused Sagar Bahadur with the above polythene bag containing 4.500 kg Ganja. They all have also deposed in detail regarding the investigation conducted by the IO/PW9 at the spot, which included the weighing of the contraband substance, the drawing of samples therefrom, the preparation of the pullandas of the samples and the case property and the sealing and seizure thereof. It has been specifically deposed by them that all the pullandas were sealed with the seal of ' RD ' and form FSL was also filled up by the IO/PW9 at the spot and the seizure memo of the case property and the sample pullandas has also been duly proved on record during the depositions of the above witnesses as Ex. PW2/A as it has been prepared by the IO/PW9 and witnessed by PW2 & PW5. PW10 SI Pooran Singh was deputed for conducting the further investigation of this case and after his arrival at the spot, the custody of the accused and the relevant documents were handed over to him by PW9 and this fact is duly deposed by all the above witnesses.
15. Further, it has also been specifically deposed by PW2, PW5 and PW9/IO that the pullandas of the case property and the samples, along with the FSL form and a copy of SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 21 seizure memo were handed over to the SHO/PW1 Insp. S.P. Kukreti, who had also arrived at the spot on receiving telephonic information about the above seizure from PW9/IO. It is also stated by all the above PWs, as well as by the SHO/PW1, that the SHO/PW1 had affixed his own seal on the above pullandas and the FSL form and had then initialled the original seizure memo and verified the facts from the accused. He had then taken the above pullandas etc. to the PS and had deposited the same with the MHC(M) HC Hari Ram/ PW3. It also stands proved on record that the above two sample pullandas of this case were taken from the police malkhana and deposited in FSL Rohini on 24.05.2007 by PW4 Ct. Pappu Ram and the deposit receipt thereof was handed over by him back to the MHC(M). The above pullandas were examined in FSL and the reports regarding their chemical and biological examination have been brought on record as Ex. PW10/A and PW6/A respectively. The chemical examination report of the above contraband substance Ex. PW10/A is per- se admissible in evidence and the biological examination report of the said substance has been duly proved on record by PW6 Ms. Shashi Bala, Senior Scientific Assistant, FSL Rohini. In the report Ex. PW10/A it is specifically mentioned that the above sample was found to contain Tetrahydrocannabinol, which is the main constituent of Cannabis plant and in the report Ex. PW6/A the same was identified to be Dried Indian Hemp, i.e. Cannabis Sativa.
16. Further, it has also been specifically deposed by SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 22 PW4 Ct. Pappu Ram that so long as the sample pullandas had remained with him, nobody tampered with it. It is also specifically mentioned in the FSL report Ex. PW10/A, vide which the above sample pullandas were first opened, that the seals affixed thereon tallied with the specimen seal impression forwarded along with the forwarding letter (FSL form) and the seals of ' SP ' and ' RD ' were found on the above sample pullandas. The relevant entry of the register no. 19 of the police malkhana regarding the deposit of the case property and samples in the malkhana and movement thereof has also been duly proved on record during the depositions of PW3 HC Hari Ram as Ex. PW3/A and no suggestion has been given to PW3 or PW4 that the case property or samples were tampered with while the same were in their custody. Moreover, there is nothing on record to suggest that the case property or the samples were tampered with at any point of time and rather the evidence led on record rules out any such possibility of tampering with the same. The original report U/S 57 NDPS Act prepared by the second IO/PW10 SI Pooran Singh on 25.04.07 and sent to the ACP Hauz Khas, through the SHO Hauz Khas, has been duly proved on record as Ex. PW8/A and the concerned ACP (Retired) Sh H.P.S.Cheema has also been examined on record by the prosecution as PW11 and the above report was received in his office and seen and endorsed by him on 25.04.07 itself and the copy of the relevant entry of the diary register of his office has also been brought and proved on record as Ex. PW8/B and hence the prosecution has SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 23 also established on record the compliance of the provisions of Section 57 NDPS Act.
17. Nothing material could be extracted out by Ld. defence counsel during the cross examination of the police witnesses of recovery of the above contraband substance from the possession of the accused, i.e PW2 HC Islamuddin, PW5 Ct. Yasin Khan and PW9/IO Insp. R.D. Pandey and also from the second IO/PW10 SI Pooran Singh and only some minor contradictions have come in the prosecution story during their such cross examination, which do not matter much and have only resulted from the gap between the incident and recording of their depositions in the court.
18. In view of the above discussion, I, therefore, hold that the prosecution has successfully brought home the guilt of the accused Sagar Bahadur for the offence U/S 20
(b)(ii)(B) of the NDPS Act and the charge for the said offence framed against the accused stands duly proved on record. The accused Sagar Bahadur is accordingly held guilty and convicted for the above offence. Let he be now heard on the quantum of sentence.
Announced in the open
court on 18.01.2011 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 50A/07 State Vs Sagar Bahadur
FIR No. 257/07
PS Hauz Khas
24
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST SAKET COURT COMPLEX, NEW DELHI State Versus Sagar Bahadur S/o Sh. Bal Bahadur R/o A-132, Nizam Nagar, Nizamuddin Basti, New Delhi.
SC No. : 50A/07 FIR No. : 257/07 U/S : 20(b) NDPS Act PS : Hauz Khas ORDER ON SENTENCE
Present: Sh S.K.Raghuvanshi Addl. PP for the State.
The convict Sagar Bahadur in JC.
After having convicted the accused for the offence U/S 20 (b)(ii)(B) of the NDPS Act vide my judgment dated 18.01.2011 arguments have been heard today as advanced by Sh S.K.Raghuvanshi, Ld APP for the State and the convict himself in person. The Ld Amicus Curiae for the convict Sh Amit Raghav had not turned up even today despite waiting and he had not turned up in this court since after addressing his final arguments.
2. It has been submitted by the Ld Additional PP for the State that keeping in view the quantity of 4.5 KG of SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 25 Ganja recovered from the convict the proportionate sentence of atleast two years is required to be imposed upon the convict, besides the fine extending up to Rs one lakh, in case the maximum term of imprisonment of ten years is not granted to him. He has also stated that convict do not deserve any leniency in the matter of awarding sentence.
3. On the other hand it is submitted by the convict that he is only aged about 22/23 years and has still to marry and settle in life. He further states that he is having old parents to look after and the small earnings of his old father from the petty labour job are not sufficient to meet the both ends of their lives. He also states that it is his first mistake and he had been or is not involved in any other criminal matter and hence he requests for showing leniency in the matter of sentence.
4. I have thoughtfully considered the above submissions being advanced on the point of sentence. The convict has been found guilty of carrying and possessing a semi commercial quantity of Ganja which carries sentence of Rigorous Imprisonment for a period extending up to 10 years and also a fine extending up to Rs 1,00,000/-. However, keeping in view the young age of the convict, his prospects for marriage and his liability towards his parents as well as the attending facts and circumstances of the case, I am taking a lenient view in awarding the sentence to the convict. On perusal of the record it is found that he had SC No. 50A/07 State Vs Sagar Bahadur FIR No. 257/07 PS Hauz Khas 26 already remained in custody in this case for a total period of about 13 months, i.e from 25.04.07 to 14.05.07 (20 days), 07.01.08 to 20.10.08 (9½ months) and 29.10.10 till date (i.e 2 months and 24 days). Therefore, he is being sentenced to the period of imprisonment already undergone by him in this case. He is also being sentenced to pay a fine of Rs 5000/- and in case of non payment of fine he shall undergo SI for a period of one month. Fine has not been paid.
5. A copy of the judgment and the order on sentence be supplied to the convict free of cost. File be consigned to the record room.
Announced in the open
court on 21.01.2011 (M.K.NAGPAL)
ASJ/Spl Judge NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 50A/07 State Vs Sagar Bahadur
FIR No. 257/07
PS Hauz Khas