Delhi District Court
State vs Ajay Kumar S/O Madan Sain on 7 February, 2012
IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE(NDPS)/ADDL.SESSIONS JUDGE (NORTHEAST) :
KARKARDOOMA COURTS, DELHI
SC No. 04/10
FIR No. 215/09
PS Crime Branch
Under Section 21 NDPS Act
Case ID 02402R0041082010
State Versus Ajay Kumar S/o Madan Sain
R/o H. No. 271, Gali Phatak Karot,
Ajmeri Gate, Delhi.
Date of Institution 09.02.2010
Date of hearing Arguments 07.02.2012
Date of Judgment 07.02.2012
J U D G M E N T
1. In the present case, the accused is facing trial for the offence punishable U/s 21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, on the allegations that on 29.12.2009 at about 5:30 P.M. on road under Metro rail bridge, near Shastri Park Majar, Delhi, within the FIR 215/09 PS Crime Branch Page 1/18 jurisdiction of PSCrime Branch, he was found in possession of 270 gms of 'Heroin', containing 1.0% diacetylmorphine, a contraband, without any license or permit.
2. In the chargesheet, it has been stated that on 29.12.2009 at about 4.00 P.M., a secret informer came to police station & informed SI Bhagwan Singh at Narcotics Cell, regarding the accused and disclosed that the accused shall come to Metro rail bridge near Shastri Park between 5.30 P.M. to 5.45 P.M., to supply 'Heroin'. On that information, IO made enquiries from him and produced him before Sh. M.L. Sharma, Inspector, Narcotics Cell and on his directions a raiding party was prepared and as per the secret information, the accused was apprehended and the contraband was recovered from his possession. It is further stated that the necessary relevant provisions of Narcotic Drugs and Psychotropic Substances Act, 1985, were complied by the police officials and the mandatory notice U/s 50 of NDPS Act was also duly served upon the accused before conducting his personal search. It is further stated that the accused was duly informed about his legal rights of his personal search in the presence of a Gazetted Officer or the Magistrate, to which, the accused had refused. Thereafter, his personal search was conducted and from the right pocket of his wearing pent, 270 gms of 'Heroin' was FIR 215/09 PS Crime Branch Page 2/18 recovered from his possession. Thereafter, the samples were taken out and all the articles were duly sealed and after completing various formalities, in compliance of the various provisions of the NDPS Act, the chargesheet was filed in the Court.
3. Vide order dated 13.05.2010, the charge for the offence punishable U/s 21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, was framed against the accused, to which, he pleaded not guilty and claimed trial.
4. During the course of trial, the prosecution has examined the following witnesses:
(i) PW 1, ASI Hasan Raja, Reader to the ACP Narcotics, who has proved the receipt of DD NO. 10 dated 29.12.2009 in the office of the ACP Narcotics and has also proved the receipt of reports U/s 57 of NDPS Act.
(ii) PW 2, Constable Sohan Pal, who took the parcel 'Mark A', alongwith the FSL form to FSL, Rohini on 06.01.2010 vide RC No. 3/21.
(iii) PW 3, Constable Sat Pal, a member of the raiding party, who remained with first IO SI Bhagwan Singh during the arrest of the accused and recovery of contraband form his possession.
(iv) PW 4, HC Suresh, who was posted at PSCrime Branch on FIR 215/09 PS Crime Branch Page 3/18 29.12.2009 as Duty Officer. This witness has recorded the FIR No. 215/09 on receipt of the Rukka, through constable Sat Pal, sent by SI Bhagwan Singh.
(v) PW 5, SI Paramjeet Singh, the second Investigating Officer of this case.
(vi) PW 6, HC Parvinder, who was remained posted as MHCM at PS Crime Branch during the period w.e.f. 29.12.2009 to 06.01.2010. This witness has proved the various entries in Register No. 19 regarding various investigations done by the police officials in the present case.
(vii) PW 7, Inspector Pradeep Kumar, who was officiating as SHO, Crime Branch, Nehru Place on 29.12.2009, who put his seal of "PK" on the parcels and FSL form produced before him by Constable Sat Pal and deposited the same with the MHCM. He has also lodged the necessary DD in this regard and proved the same as Ex.PW7/A.
(viii) PW 8, Inspector M.L. Sharma, who was posted as Incharge, Narcotics Cell on 29.12.2009, who directed the preparation of a raiding party and conducting of raid by SI Bhagwan Singh.
(ix) PW 9, HC Inder Pal Singh, who was posted as MHCR (Record) at PSParliament Street, who has proved the copy of FIR No. 98/05 U/s 27 of the NDPS Act, registered at P.S.Parliament Street, as Ex.PW9/A. FIR 215/09 PS Crime Branch Page 4/18 This witness has reported that the accused was convicted in the said case by the Court of Sh. Sanjeev Jain, Ld. MM, Patiala House Court, New Delhi.
(x) PW 10, HC Namonarayan, MHCR (Record) of PSIP Estate, who has filed a list of previous cases registered against the accused. The list has been proved on record as Ex.PW10/A.
(xi) PW 11, HC Mahesh, who was a member of the raiding party and remained with first IO/SI Bhagwan Singh and other officials, during the raid, arrest and alleged recovery of Heroin, from the possession of the accused.
(xii) PW 12, SI Bhagwan Singh, the first Investigating Officer of this case.
5. After completion of prosecution evidence, the statement of the accused, U/s 313 Cr.P.C., was recorded by the Ld. Predecessor of this court on 25.02.2011, wherein, the accused has denied all the incriminating evidence against him and has deposed that he is innocent and has been falsely implicated in this case. He has further stated that nothing was recovered from him and the alleged contraband has been implanted upon him. He has further stated that he was called to Narcotics Cell and a demand for money was made from him and when he FIR 215/09 PS Crime Branch Page 5/18 refused to oblige the police, he was implicated in the present false case.
6. The accused has preferred not to lead any defence evidence.
7. After completion of trial, final arguments were addressed by Sh. S.K. Dash, Ld. Additional PP for the State and Sh. Amit Gupta, Advocate, 'Amicus Curiae', for the accused. The Ld. Defence Counsel has argued that as per the FSL report Ex.PW5/E the alleged recovered contraband contained only 1% diacetylmorphine and therefore, the total amount of contraband in possession of the accused was only 2.7 gms and the same is a "small quantity" only and therefore this Court has no jurisdiction to try the accused.
8. On the other hand, the Ld. Addl. PP for the state has argued that after the notification dated 14.09.2009, the percentage of diacetylmorphine in the recovered contraband is immaterial and the entire weight of the contraband, recovered from the accused is to be considered for the charges U/s 21 (c) of the NDPS Act. He has also argued that the various provisions of the NDPS Act have been duly followed by the investigating officers and the prosecution witnesses have duly proved the recovery of 270 gms. of 'Heroin' from the possession of the accused and therefore, the accused should be convicted for the offence punishable U/s 21 (c) of the NDPS Act.
FIR 215/09 PS Crime Branch Page 6/18
9. I have carefully gone through the case file & I have given my considered thoughts to the arguments addressed by the Ld. Defence Counsel and the Ld. Addl. PP for the State. Perusal of the record shows that PW 12 SI Bhagwan Singh has categorically stated in the Court that on 29.12.2009, he was posted at Narcotics Cell and on that day, at about 4.00 P.M. a secret informer came to him and informed him about the accused and disclosed that the accused shall come near Metro rail bridge, Shastri Park, Delhi between 5.15 P.M. to 5.45 P.M. to supply the 'Heroin'. This information was recorded by the IO in DD register as DD No. 10 at 4.30 P.M. and the same has been proved on record as Ex.PW1/B. This witness has further deposed that after receiving information from the secret informer, he produced the secret informer before PW8 Inspector M.L. Sharma, who was Incharge, Narcotics Cell on that day and PW8, Inspector M.L. Sharma, after satisfying himself about the secret information, directed to prepare a raiding party and to conduct the raid. This witness has also proved the carbon copy of DD No. 10 as Ex.PW8/A.
10. PW12 SI Bhagwan Singh has further deposed that at about 5.00 P.M. he constituted a raiding party, consisting of himself, HC Mahesh (PW11), Constable Sat Pal (PW3) and Constable Sohan Pal (not cited as a FIR 215/09 PS Crime Branch Page 7/18 witness). He has further stated that after taking his IO bag, field testing kit and electronic weighing scale, he left the Police StationNarcotics Cell with the secret informer in the official vehicle bearing registration No. DL 1CJ 3481, driven by HC Om Prakash and DD No. 11 was recorded at the police station at 5.00 P.M., in this regard. He has further deposed that the raiding party reached the spot at about 5.15 P.M. and on the way, they asked several public persons to join the proceedings but nobody obliged. He has further deposed that the official vehicle was parked near the spot and the raiding party was again briefed about the accused and at about 5.25 P.M., the accused came from the side of 'Majar' and the secret informer pointed towards the accused from a distance of about 1520 meters and after pointing at the accused, he left the spot. Thereafter, the accused came near the spot and stood there for about 34 minutes and when he started moving again he was apprehended at about 5.30 P.M. and introduction of the raiding party was given to him and he was apprised of the secret information and was also apprised about his legal rights and it was also disclosed to him that in case, he wants to get his personal search conducted in the presence of a Gazetted Officer or a Magistrate then the said arrangement can be made. It was also disclosed to him that the accused was allowed to take the search of FIR 215/09 PS Crime Branch Page 8/18 the official vehicle or the members of the raiding party, prior to his search. But, the accused refused both the offers. Thereafter, mandatory notice U/s 50 of The NDPS Act was served upon the accused. The original notice U/s 50 of The NDPS Act has been proved on record as Ex.PW3/A, which runs as under: " DD No. 11 Dated 29.12.2009 Narcotics Cell, Delhi Notice U/s 50 NDPS Act "Aap Ajay Kumar S/o Sh. Madan Sain R/o H.No. 271, Gali Fatak Karot, Ajmeri Gate, Delhi, ko iss notice ke madhyam se suchit kiya jata hai ki aapke bare main hamare paas Ittla hai ki aap Delhi main Heroin Supply Ka Kaam Karte Ho aur Aaj Ab bhi aap yaha kisi ko Heroin Supply karne aaye ho, aapse Heroin baramad hone ki sambhawna hai isliye aapko mere dawara talashi amal main layi jaani hai. Parantu talashi se pahle aapka yah kanooni adhikar hai ke yadi aap chahe to aapki talashi kisi rajpatrit adhikari athwa magistrate ke samne karai ja sakti hai, jiska prabandh kiya ja sakta hai. Aap apni talashi se pahle police party ke sadasyon wa sarkari gadi ki talashi bhi le sakte hai sd/ Ajay Kumar Gawah sd/ (1) HC Mahesh Kumar No. 488/Crime Narcotics CellDelhi.
sd/ (2) CT. Sat Pal No. 169/DRP N/Cell Delhi sd FIR 215/09 PS Crime Branch Page 9/18 (BHAGWAN SINGH) SI, Narcotics Cell, Delhi Delhi29.12.09"
11. The refusal by the accused has been proved on record as Ex.PW3/B, which runs as under: " Aapke dawara diye gaye notice ki ek copy prapt ki maine notice ka majboon padhkar samajh liya hai aapne mujhe rajpatrit adhikari wa magistrate ka matlab bhi samjhaya. Main apni talashi kisi rajpatrit adhikari athwa magistrate ke samne nahi karana chahta aur na hi police party ke sadasyon wa sarkari gadi ki talashi lena chahta. Aap hi meri talashi le sakte hai.
sd/ Ajay Kumar Gawah sd/ (1) HC Mahesh Kumar No. 488/Crime Narcotics CellDelhi.
sd/ (2) CT. Sat Pal No. 169/DRP Narcotics Cell/ Delhi sd (BHAGWAN SINGH) SI, Narcotics Cell, Delhi Delhi29.12.09"
12. Perusal of the above documents indicates that the provisions of Section 50 of The NDPS Act, have been duly complied by the police officials.
FIR 215/09 PS Crime Branch Page 10/18
13. PW 12 SI Bhagwan Singh has further deposed that before taking the personal search of the accused, 78 persons, who gathered at the spot, during these proceedings, were also asked by him to join the proceedings, but, nobody obliged and left the place without disclosing their names and address. Thereafter, he took the formal search of the accused, in which, the alleged recovery was effected from the right side pocket of the wearing pant of the accused. The contraband recovered from the accused was checked and was tested with field testing kit and on checking it was found to be 'Heroin'. This witness has further deposed that the recovered 'Heroin' was weighted with the help of an electronic weighting scale and it was found to be 270 gms. Thereafter, he took out two samples of 5 gms each and converted into two cloth parcels, which were marked as 'Mark A' and 'Mark B' and the remaining 'Heroin' was converted into a third cloth parcel 'Mark C' and thereafter he filled the FSL form and all the three parcels and FSL form were affixed with his seal of "BS". This witness has further stated that the seal was handed over to HC Mahesh after use and all the three parcels were seized by him vide seizure memo Ex.PW3/C. This witness has further deposed that he prepared the Rukka and handed over the same to Constable Sohan Pal with the three parcels and FSL form and the carbon copy of the seizure memo, with the FIR 215/09 PS Crime Branch Page 11/18 directions to produce the Rukka before the Duty Officer and to produce the remaining articles before the SHO Crime Branch. This witness has proved his Rukka as Ex.PW12/A. PW3 Constable Sat Pal, who remained with the IO as a member of the raiding party has deposed in a similar manner and has supported the deposition of PW 12 on all these material points. PW3 Constable Sat Pal has further deposed that he handed over the Rukka to the Duty Officer at PSCrime Branch, Nehru Place, New Delhi and the remaining articles were produced by him before the SHO. This witness has further deposed that the SHO PW7 Inspector Pradeep Kumar, had affixed his seal of "PK" on all the three parcels, FSL Form and put FIR No. and his signatures on all these three parcels and FSL form. Thereafter, he called the MHC(M), HC Parvinder (PW6) to his office with Register No. 19 and deposited all these articles with MHC(M), who made relevant entries in register No. 19. The testimony of this witness finds corroboration with the testimony of HC Parvinder (PW6), who has stated that on 29.12.2009, SHO, Inspector Pradeep Kumar called him in his office alongwith register No. 19 and deposited the three sealed Pulandas, duly sealed with the seal of "BS" and "PK" and one FSL form having seals of "BS" and "PK" and carbon copy of the seizure memo. This witness has proved the photocopy of entry No. 574 FIR 215/09 PS Crime Branch Page 12/18 of register No. 19 as Ex.6/A.
14. PW4 HC Suresh, the Duty Officer, has also deposed that on 29.12.2009 at about 9.45 P.M., Constable Sat Pal handed over a Rukka to him, sent by SI Bhagwan Singh, on the basis of which he recorded FIR No.215/09 at PSCrime Branch, through the computer operator. The computerised copy of the FIR has been proved as Ex.PW4/A. He has also stated that he also made an endorsement on the Rukka and the same is proved on record by this witness as Ex.PW4/B. He has also stated that he also recorded Kaymi DD No. 8 regarding the Rukka and the FIR. The same has been proved on record as Ex.PW4/C. He has also stated that on 29.12.2009 he also recorded DD No. 10 regarding the accused and the same has been proved on record as Ex.PW4/D.
15. PW12 SI Bhagwan Singh has further deposed that at about 10.45 P.M., PW5 SI Paramjeet Singh reached the spot in the same Govt. vehicle and all the documents were handed over to him and thereafter, SI Paramjeet Singh prepared the site plan at his instance. This witness has further stated that the accused was arrested by SI Paramjeet Singh vide memo Ex.PW5/B and his personal search was conducted vide Ex.PW5/C and in his personal search a carbon copy of notice U/s 50 of The NDPS Act and a cash amount of Rs.30/ was recovered. The carbon copy of the FIR 215/09 PS Crime Branch Page 13/18 notice recovered in the personal search of the accused, by PW5 SI Paramjeet Singh, has been proved on record as Ex.PW3/D. SI Paramjeet Singh has corroborated this testimony of PW 12 SI Bhagwan Singh on all these material points. The site plan prepared by him has been proved on record as Ex.PW5/A. PW5 SI Paramjeet Singh has also recorded the disclosure statement of the accused and the same has been proved on record as Ex.PW5/D. He has also stated that all the police officials, alongwith the accused, left the spot at about 12.45 A.M. on 30.12.2009 and reached Police StationCrime Branch, Nehru Place and the records of personal search of the accused was deposited with MHC(M) and he recorded the statements of SHO Inspector Pradeep Kumar (PW7) and MHC(M) Chand Ram.
16. He has further deposed that the accused was produced before Inspector M.L. Sharma (PW8), who made enquiries from the accused and thereafter, he recorded the statement of witnesses through computer and prepared report U/s 57 of the NDPS Act, which was forwarded to the senior officers by Inspector, Narcotics Cell. The reports U/s 57 of NDPS Act regarding the arrest of the accused has been proved on record as Ex.PW1/F. PW1 ASI Hasan Raja, the Reader to the ACP, Narcotics Cell has proved the receipt of these two reports U/s 57 of the NDPS Act. The FIR 215/09 PS Crime Branch Page 14/18 second report has been proved on record as Ex.PW1/E. PW1 ASI Hasan Raja has also proved the receipt of DD No. 10 and the diary entry as Ex.PW1/B and Ex.PW1/A respectively. ASI Hasan Raja has also proved diary No. 1292 and 1293, regarding receipt of the special reports U/s 57 of the NDPS Act, as Ex.PW1/C and Ex.PW1/D respectively.
17. The second Investigating Officer PW5 SI Paramjeet Singh has further deposed that on 06.01.2010, the sample parcels was sent to FSL Rohini through Constable Sohan Pal vide RC 3/21. Photocopy of the same has been proved on record as Ex.PW2/A. Constable Sohan Pal (PW2) has also stated that on 06.01.2010 he took the FSL form with one parcel 'MarkA' duly sealed with the seals of "PK" and "BS", to FSL Rohini vide RC No. 3/21 and deposited the same with FSL Rohini and took the acknowledgment receipt and deposited the same with MHCM. The acknowledgment receipt has been proved on record as Ex.PW2/B.
18. PW7 Inspector Pradeep Kumar has also deposed that on 29.12.2009 he was Officiating as SHO, Crime Branch as the SHO was on leave and on that day at about 9.47 P.M. Constable Sat Pal came to his office and produced three pulandas marked A, B and C, duly sealed with the seal of "BS" and carbon copy of seizure memo and he put his own seal of "PK"on all these articles. This witness has further deposed that at about FIR 215/09 PS Crime Branch Page 15/18 10.05 P.M. he called the MHCM HC Prvinder (PW6) in his office with register No. 19 and deposited all the aforesaid articles with him and MHCM made an entry in this regard in register No. 19. Inspector Pradeep Kumar (PW7), has further stated that he also lodged DD No. 19 at 10.45 P.M., in this regard. The carbon copy of the same has been proved on record as Ex.PW7/A.
19. Perusal of the record further shows that the members of the raiding party and the recovery witnesses i.e. PW11 HC Mahesh, PW12 SI Bhagwan Singh, the first investigating officer and PW5 SI Paramjeet Singh, second Investigating Officer, Inspector Pradeep Kumar, Officiating SHO, PSCrime Branch, Nehru Place (PW7) and Inspector M.L. Sharma, Incharge Narcotics Cell (PW8) have all corroborated the testimonies of each other on all the material points. All these witnesses have been crossexamined by the Ld. Defence Counsels at length, but, no material discrepancy has come on record to make their testimonies or the prosecution case doubtful.
20. The remaining witnesses have also supported the prosecution case on all the material points and their crossexaminations have failed to disclose any questionable discrepancy to make the prosecution case doubtful. Even otherwise, some minor discrepancies may creep in the FIR 215/09 PS Crime Branch Page 16/18 testimonies of the witnesses, during their crossexamination, when the witnesses depose in the Court in a natural way after a lapse of sometime.
21. The sample 'MarkA', which was sent to CFSL for Chemical analysis was duly chemically analysed and Doctor Madhulika Sharma, Assistant Director (Chemistry), Forensic Science Laboratory, Rohini, Delhi has submitted her report bearing No. FSL..2010/C0034 dated 21.04.2010 and the same has been proved on record as Ex.PW5/E. This report is admissible in evidence by virtue of section 293 of The Code of Criminal Procedure, 1973. The result of examination of the samples has been given as under: RESULT OF EXAMINATION
(i) The sample(s) 'A' was examined by chemical tests, chromastography and instrumental methods.
(ii) On the basis of above examinations, the sample(s) 'A' was found to contain Caffeine, Acetylcodeine, Monoacetylmorphine and Diacetylmorphine.
(iii) However, the percentage of Diacetylmorphine was found to be 1.0% in exhibit 'A'.
22. The main contention of the Ld. Defence Counsel has remained that the contraband recovered from the possession of the accused was containing only one percent diacetylmorphine and therefore, the quantity of 'Heroin' was only 2.7 gms and the same is a "small quantity". But I do not find any merit in such submissions of the Ld. Defence Counsel, as the FIR 215/09 PS Crime Branch Page 17/18 notification dated 14.09.2009 was already in force on 29.12.2009, the date on which, the alleged recovery was effected from the possession of the accused.
23. In these circumstances, I am of the considered opinion that the prosecution has successfully proved the charge against the accused for the offence punishable U/s 21 (c) of the NDPS Act, beyond a shadow of doubt and accordingly, the accused is hereby held guilty for the said offence and is convicted, accordingly. Let the convict be heard on the point of sentence on the next date of hearing on 14.02.2012. It is ordered accordingly.
Announced in the open court on this 7th day of February, 2012 Brijesh Kumar Garg Special Judge NDPS (NorthEast) Addl. Sessions Judge:KKD Courts, Delhi FIR 215/09 PS Crime Branch Page 18/18