Delhi District Court
State vs Mohd. Sikander on 30 November, 2013
IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE(NDPS)/ADDL.SESSIONS JUDGE (NORTH
EAST) : KARKARDOOMA COURTS, DELHI
SC No. 02/2010
FIR No. 192/2009
PS Crime Branch
Under Section 21 N.D.P.S. Act
Case ID 02402R0004682010
State Versus Mohd. Sikander
S/o Mohd. Safiq,
R/o Bara Dari Sarai Hussain
Begum, Bur Ka Kuan,
Muradabad, (U.P.)
Date of Institution 07.01.2010
Date of hearing Final Arguments 19.11.2013
Date of Judgment 30.11.2013
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, for possession of 300 grams 'Heroin' containing 0.4% diacetylmorphine.
2. It has been stated in the chargesheet that on 08.11.2009, a FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 1/23 secret informer came to Narcotics Cell, Shakarpur at about 2.30 p.m. and informed SI Satyawan regarding possession of Heroin by the accused, on which, SI Satyawan produced the secret informer before Inspector M.L. Sharma, Incharge, Narcotics Cell and he also made inquiries from the secret informer and after his satisfaction, he informed ACP S.K. Yadav at his residence, who directed him to conduct an immediate raid.
3. Thereafter, SI Satyawan recorded DD No. 9 at 3.00 p.m. and produced a copy of the same before Inspector M.L. Sharma, who forwarded the same to the concerned senior officers. Thereafter, a raiding team was constituted by SI Satyawan and he collected his IO bag, field testing kit and electronic weighing machine and left the Narcotics Cell, Shakarpur in official vehicle bearing registration No. DL1CJ 3481, being driven by HC Kanwal Singh. It is also stated that several public persons were asked to join the raiding team, on the way to the spot, but nobody obliged and thereafter, the position was taken by the members of the raiding team at the disclosed spot and at about 3.40 p.m., the accused came to the spot and was identified by the secret informer. The accused waited at the spot for about 34 minutes, for somebody and when he was about to leave the spot, he was FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 2/23 apprehended by the members of the raiding team. Thereafter, the introduction of the members of the raiding team was given to him and he was also disclosed about his legal rights and about the secret information and a notice U/s 50 NDPS Act was served upon him. The accused refused to avail the offers and thereafter, his personal search was conducted, in which, a transparent polythene containing 300 grams light brown powder was recovered from his wearing pant. On checking the same with the field testing kit, it was found as Heroin. Thereafter, IO prepared two samples of 5 grams each and the sample and the remaining Heroin were kept in separate cloth pulandas and were sealed with the seal of '7APSNBDELHI'. Thereafter, the IO prepared the FSL form and handed over all the documents and the sealed pulandas, alongwith the rukka to Ct. Sohan Pal and sent him to the police station with the directions to produce the rukka before the duty officer and to hand over the remaining articles to the SHO concerned. Thereafter, case FIR No. 192/2009 was registered at PS Crime Branch, U/s 21 NDPS Act. Ct. Sohan Pal handed over the other articles to Inspector Akshay Kumar, SHO, PSCrime Branch, who affixed his own seal of 'AK' on the sealed pulandas and FSL form and deposited the same at the Malkhana.
FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 3/23
4. After registration of the FIR, the investigation was marked to SI Bhagwan Singh, who went to the spot in the same official vehicle and prepared the site plan and interrogated and arrested the accused and prepared the various documents on the spot.
5. It is further stated that during investigations, the IO SI Bhagwan Singh recorded the statements of the witnesses and deposited the articles of personal search of the accused at the Malkhana. During the investigations, the sample Heroin was sent to FSL, Rohini through Ct. Sat Pal and after completion of investigations, the chargesheet was filed in the Court and the accused was sent up for trial.
6. Vide order dated 18.03.2010, the charge for the offence punishable U/s 21 (c) of the NDPS Act, was framed against the accused, by the Learned Predecessor of this Court, to which, the accused pleaded not guilty and claimed trial.
7. During the course of trial, the prosecution has examined a total of 11 witnesses, who are all police officials. The members of the raiding party, namely, Ct. Sohan Pal, HC Jogender and SI Satyawan have been examined as PW3, PW5 and PW7, respectively. Inspector Akshay Kumar, SHO of Crime Branch, has been examined as PW6. Inspector M.L. Sharma, Incharge of Narcotics Branch, FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 4/23 Shakarpur, has been examined, as PW2. SI Bhagwan Singh, the Investigating Officer of the present case has been examined as PW8. The remaining witnesses are the formal police officials, who joined the investigations of the present case at various stages.
8. After completion of prosecution evidence, the statement of the accused was recorded U/s 313 Cr.P.C., on 22.05.2013, and his additional statement was recorded on 14.10.2013, wherein, he denied all the incriminating evidence against him and has stated that he is innocent and has been falsely implicated in this case. He has further stated that no recovery was affected from his possession and the alleged contraband was planted on him. The accused has not examined any witness in his defence, despite opportunity.
9. After completion of trial, final arguments were addressed by Sh. Dharam Chand, Ld. Substitute APP for the State and Sh. Sarfaraz, Advocate, for the accused.
10. The Ld. APP for the state has argued that the police officials have followed the various mandatory provisions of the N.D.P.S. Act and the accused was duly disclosed about his legal rights before conducting his personal search and PW3 Ct. Sohan Pal, PW5 HC Joginder and PW7 SI Satyawan have duly proved the recovery of FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 5/23 300 grams Heroin from the possession of the accused. He has also argued that SI Bhagwan Singh has duly proved the investigations done by him in the present case. He has also argued that the prosecution witnesses have also established on record that the sample of Heroin was not tampered till its examination at FSL, Rohini. He has also argued that the prosecution witnesses have duly proved the case against the accused, for the offence punishable U/s 21 (c) of the NDPS Act beyond a shadow of doubt and therefore, the accused should be held guilty and convicted for the said offence.
11. On the other hand, the Ld. defence counsel, Sh. Sarfaraz, Advocate, has argued that the police officials have not complied the provisions of Section 50 NDPS Act, properly, as no independent public witness has joined the investigations. He has also argued that Ct. Kanwal, the driver of the official vehicle, in which, the raid was allegedly conducted, has not been examined, during the trial and the alleged sample was deposited at FSL, Rohini on 23.11.2009, after a delay of 15 days in violation of the guidelines of the NCB. He has also argued that there are several contradictions in the depositions of the prosecution witnesses, which makes the entire prosecution case, doubtful and therefore, the accused be acquitted of the offence FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 6/23 punishable U/s 21 (c) of the NDPS Act.
12. I have carefully gone through the case file & I have given my considered thoughts to the arguments addressed by the Ld. APP for the State and the Ld. defence counsel.
13. Perusal of the record shows that PW7, SI Satyawan has deposed that on 08.11.2009, he was posted at PS Narcotics Cell, Shakarpur and at about 2.30 p.m., a secret informer came to Narcotics Cell, Shakarpur and informed him about the accused and possession of Heroin by him. Thereafter, he produced the secret informer before Inspector M.L. Sharma, who also made inquiries from the secret informer and passed the information to the ACP, N&CP, Sh. S.R. Yadav, telephonically. Thereafter, he recorded DD No. 9 at 3.00 p.m. DD No. 9 has been proved on record, as Ex.PW1/B. It was also duly forwarded to the senior officers. PW1 HC Karunakaran, Reader to ACP, has proved the receipt of DD No. 9 on 09.11.2009, vide entry No. 1020. The photocopy of diary register containing entry No. 1020 is also proved on record as Ex.PW1/A. All these proceedings & documents have established that the provisions of Section 43 of the NDPS Act have been duly complied by the police officials. Provisions of Section 42 of the NDPS Act are not applicable to the present case. FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 7/23
14. PW7 SI Satyawan has further deposed that, as per the directions of Inspector M.L. Sharma, he constituted the raiding party, consisting of himself, Ct. Jogender and Ct. Sohan Pal and after taking his IO bag, field testing kit and electronic weighing scale, they left for the spot, alongwith the secret informer. He has further deposed that several public persons were asked to join the investigations, on the way to the spot, but all those persons refused & left the spot without disclosing their names and addresses. He has further deposed that the raiding team members took their positions near the spot and at about 3.40 p.m. the accused was seen coming from the side of Seelampur and was identified by the secret informer. Thereafter, the accused came to the spot and waited there for someone and when he started to return back, he was apprehended by him. Thereafter, the introduction of the members of the raiding party was given to him and he was apprised about the secret information and was also apprised about his legal rights and it was also told to him that, if he wants, his personal search can be conducted in the presence of a Gazetted Officer or a Magistrate. The accused was also offered the search of the official vehicle and the members of the raiding party, prior to his personal search. But, the accused refused to avail all the offers. Thereafter, a FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 8/23 notice U/s 50 of The N.D.P.S. Act was served upon the accused and his refusal was also recorded. SI Satyawan (PW7) has proved the original notice U/s 50 of The N.D.P.S. Act, as Ex.PW3/C & the refusal of the accused as Ex.PW3/D. Thereafter, he again requested 1012 persons to join the proceedings, but none agreed. Thereafter, he conducted the cursory search of the accused and recovered a transparent polythene packet, containing light brown colour powder, from the right side pocket of the jeans of the accused. PW3 Ct. Sohan Pal and PW5 HC Jogender, who remained with SI Satyawan, as the members of the raiding party, have also deposed in a similar manner and have corroborated the deposition of PW7, SI Satyawan, on all the material points. Testimonies of these three witnesses clearly indicate that the provisions of Section 50 NDPS Act were duly complied by the police officials.
15. PW7 SI Satyawan has further deposed that at about 9.00 p.m., I.O. SI Bhagwan Singh (PW8) reached the spot, in the same official vehicle and he handed over the custody of the accused and the documents to him. He has further stated that SI Bhagwan Singh, prepared the site plan, at his instance and recorded the statement of Ct. Jogender. He has further deposed that SI Bhagwan Singh arrested the FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 9/23 accused and conducted his personal search. He has further deposed that the carbon copy of the notice U/s 50 of N.D.P.S. Act was recovered in the personal search of the accused, alongwith other articles. Carbon copy of the notice U/s 50 NDPS Act has been proved on record as Ex.PW5/D.
16. PW7 SI Satyawan and PW8 SI Bhagwan Singh have also deposed that they prepared the reports U/s 57 of N.D.P.S. Act and the same were forwarded to the senior officers, by Inspector M.L. Sharma. PW1 HC Karunakaran, the Reader to the ACP, Narcotics Cell, has corroborated the fact of receiving the report U/s 57 of N.D.P.S. Act. He has deposed that on 09.11.2009, two Special Reports U/s 57 N.D.P.S. Act, Ex.PW1/E and Ex.PW1/F were received in the office of the ACP, Narcotics Cell vide dairy No. 1025 and 1026. The copy of the diary register has been proved on record as Ex.PW1/C and Ex.PW1/D. All the circumstances & the evidence on record indicates that the provisions of Section 57 NDPS Act are also duly followed.
17. The main contention of the Ld. defence counsel has remained that there is an unexplained delay of about 15 days in depositing the samples at FSL, Rohini and the same violates the FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 10/23 guidelines of the NCB and is fatal to the present prosecution case.
18. In view of the documentary evidence on record, I do not find any merit, in this argument. The prosecution witnesses have deposed in a consistent and trustworthy manner, regarding the recovery of the contraband from the possession of the accused, its seizure by SI Satyawan, preparation of the samples and deposition of the case property & the samples at the Malkhana and sending of the samples to the FSL, Rohini, for chemical analysis and thereafter, receiving of the remnants of the samples alongwith the FSL Report, at the Malkhana.
19. It has been held by the Hon'ble High Court of Delhi in the case titled as Bilal Ahmed Vs. State, reported as 2011(1)JCC 27, as under: "10. I also do not find any merit in the contention that the form FSL was not deposited in the malkhana or that the same was not sent to the CFSL. PW3 Inspector Jeevan Singh has stated that the form FSL was filled and the pulanda was taken into possession vide Seizure Memo Ex. PW3/A. He took the pulanda and the FSL form in his possession along with the seizure memo and deposited the pulanda and FSL form along with a copy of the seizure memo in the malkhana on 2nd May, 1999 at around 10 p.m. The testimony of PW3 Inspector Jeevan Singh also finds support from the testimony of PW 9 Bhagmal Singh who also states that the samples and pulanda FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 11/23 were deposited with him duly sealed with the seal of R.K. and J.S. He made the entry in the register No.19, Ex. PW9/A. The contention that the form FSL was not sent to CFSL Chandigarh, is unfounded. The CFSL report Exhibit PX states that "Seals were intact, and tallied with specimen seals impressions". The seals on the samples cannot be tallied except with the specimen seals on the FSL form. Thus, even without specifically stating that form FSL has been received with the samples, this endorsement clarifies that the form FSL was received. Delay in sending parcel to the CFSL is not fatal especially when as per the CFSL report, the seals are intact and tallied with the specimen seals. In State of Rajasthan v. Daul @ Daulat Giri MANU/SC/0881/2009 : 2009 (14) SCC 387 it was held:
1. The factual scenario goes to show that Jaswant Singh (PW.1), the I.O., seized the articles on 15/6/1995. The search memo is Ex. P.4 and the specimen impression of the seal Ex. P.5. PW.1 deposited the seized articles and sample with Bhanwarlal (PW.8) who was the Malkhana InCharge in the Malkhana register in Ex. P.15A. PW.8 handed the material to Surendera Singh (PW.5) for depositing the sample in FSL. PW.5 reached the Superintendent of Police office and gave the samples to Jamnalal at 10.00 a.m. and received back the samples from Jamnalal at 5.00 p.m. and also obtained forwarding letter which is Ex. P.12 and is dated 20/6/95. PW.5 submitted the samples to FSL and obtained acknowledgment receipt it is Ex. P.13. The role of Jamnalal is very limited; that is receiving sample at 10.00 a.m. and handing samples back at 5.00 p.m. It is FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 12/23 not understandable as to how the nonexamination of Jamnalal in any way affected the veracity of the prosecution version. The High Court came to an attempt and unsustainable conclusion that because Jamnalal was not examined "possibility of the sample having been tampered with could not be ruled out".
The conclusion is unsustainable in view of the FSL report which clearly stated that the seals were intact and matched with the specimen seals.
11. In Hardip Singh v. State of Punjab MANU/SC/7956/2008 : 2008 (8) SCC 557 it was held:
16. So far as the question of delay in sending the samples of opium to the Forensic Science Laboratory (FSL) is concerned, the same in our opinion has no consequence for the fact that the recovery of the said sample from the possession of the Appellant stands proved and established by cogent and reliable evidence led in the trial. PW 5 has categorically stated and asserted about the recovery of opium from the possession of the Appellant, which fact is also corroborated by a higher officer, namely, SS Mann, DSP who was also examined at length during the trial.
The said recovery was effected in the presence of the said SS Mann, DSP, as senior police officer, who also put his seal on the said parcels of opium.
17. The then Station House Officer, Inspector Baldev Singh, who was examined as PW 1, was posted at Police Station Ajnala on the date of occurrence. He received the said samples of opium along with case material, being produced before him by PW 5. It has come on evidence that Inspector Baldev Singh kept the FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 13/23 entire case property with him till it was deposited in the office of Chemical Examiner, Amritsar on 30.9.1997 through ASI Surinder Singh, (PW3). It has also come on evidence that till the date the parcels of sample were received by the Chemical Examiner, the seal put on the said parcels was intact. That itself proves and establishes that there was no tampering with the aforesaid seal in the sample at any stage and the sample received by the analyst for chemical examination contained the same opium which was recovered from the possession of the Appellant. In that view of the matter, delay of about 40 days in sending the samples did not and could not have caused any prejudice to the Appellant. The aforesaid contention, therefore, also stands rejected."
20. In the present case also, SI Satyawan, PW7, has deposed that after the recovery of 300 grams Heroin, he took out two samples of 5 grams each from the recovered Heroin and prepared two samples and filled up the FSL form and affixed his seal of "7APSNBDELHI" on the FSL form and all the three cloth pulandas. This witness has further stated that the seal was handed over to Ct. Jogender, after use and all the parcels were seized by him vide seizure memo Ex.PW3/E. He has further deposed that he prepared the rukka Ex.PW7/A and handed over the same to Ct. Sohan Pal, alongwith three sealed pulandas, FSL Form and the carbon copy of the seizure memo, with FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 14/23 the directions to hand over the rukka to the Duty Officer and the remaining articles to the SHO. PW3 Ct. Sohan Pal has also deposed that he handed over the rukka to the Duty Officer and remaining articles to the SHO, Inspector Akshay Kumar. PW6 Inspector Akshay Kumar, has also deposed that he also affixed his seal of "AK" on all the pulandas & the FSL Form and also put the FIR number and his initials on all these articles and the documents and called the MHC(M) to his office and handed over the aforesaid articles to him. PW9 HC Chand Ram, MHC(M) has also deposed that on 08.11.2009, Inspector Akshay Kumar, SHO, called him to his office and handed over three sealed pulandas & form FSL to him and he made entry at serial No. 501 in register No. 19, in this regard. He has also proved the entry of register no. 19 as Ex.PW9/E.
21. Furthermore, the sample of Heroin, which was sent to FSL, Rohini, for Chemical analysis was duly chemically analysed by Dr. Madhulika Sharma, Assistant Director (Chemistry), Forensic Science Laboratory, Delhi. She has submitted her report, bearing No. FSL.2009/C4869 dated 18.01.2010, which is Ex.PW8/D. This report is admissible in evidence, by virtue of section 293 of The Code of Criminal Procedure, 1973. As per the report, Ex.PW9/D, the sample FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 15/23 'MarkA' was found to contain, 0.4 % Diacetylmorphine. It was also reported that the seals of the parcel were intact and tallied with the specimen seals forwarded.
22. Perusal of the testimonies of the prosecution witnesses, shows that the witnesses have corroborated the testimonies of each other, on all the material points. Perusal of the testimonies of the witnesses indicates that the various provisions of the N.D.P.S. Act, 1985, have been duly complied by the Investigating Officers. All these witnesses have been crossexamined by the Ld. defence counsel at length, but, no material discrepancy has come on record, to discard their testimonies or to make the prosecution case doubtful.
23. Another objection is raised by the Ld. defence counsel that no public witness or a Gazetted Officer has joined the investigations, despite of the fact that the raiding team remained at the spot for several hours & the raid was conducted at a very congested & busy place, like Shastri Park Metro Station, Seelampur. I do not find any merit even in this argument. It has been held by the Hon'ble High Court of Delhi, in case titled as 'Rattan @ Ratan Singh Vs. State (Govt. of NCT of Delhi)', reported as 2013 II AD (Delhi) 288, as under:
FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 16/23
"SI Balbir Singh (IO) deposed about three attempts being made by him to join independent witnesses. First at Chirag Delhi bus stand, then at Kalkaji Mandir and ultimately after apprehension of the Appellants and before making their searches. PW4 and PW6 also deposed about the attempts made by the IO to join independent witnesses. Thus, it cannot be said that no attempt was made by the IO to join any independent witness before conducting the search of the Appellants. I am in agreement with the learned APP for the State that public witnesses are reluctant to come forward to join police investigation in order to avoid their repeated visits to the Police Station and Court. In Ajmer Singh v. State of Haryana MANU/SC/0111/2010 : 2010 (2) SCR 785, the Supreme Court held that it is not always possible to find independent witnesses at all the places at all the times. The obligation to join public witness is not absolute. If the police officer is unable to join any public witnesses after genuine efforts, the recovery made by the police officer would not be vitiated. The Supreme Court held that in such circumstances, the Court will have to appreciate the relevant evidence to determine whether the evidence of a police officer is believable so as to place implicit reliance thereon. A learned Single Judge of this Court in Union of India v. Victor Nnamdi Okpo, Criminal Appeal No. 617/2004 decided on 16.09.2010 in a case under the NDPS Act echoed the sentiments that public is averse to become a witness because of the attitude of the court in summoning the witnesses time and again and sending them back unexamined on the ground that either the counsel of the accused was not available or the accused was not there."
(emphasis supplied by me)
24. Even in the present case, PW7 SI Satyawan, PW3 Ct. FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 17/23 Sohan Pal and PW5 HC Jogender have all deposed that requests were made to several pubic persons, to join the investigations, but they all refused and left the spot, without disclosing their names and addresses.
25. The last contention of the Ld. defence counsel has remained that there are several contradictions in the depositions of the prosecution witnesses. But, in the considered opinion of this Court, the minor discrepancies in the depositions of the witnesses, as pointed out by the Ld. defence counsel, are not fatal to the prosecution case, as some minor discrepancies are bound to creep in the testimonies of the witnesses, when the witnesses depose before the Court in a natural manner and after a lapse of long time.
26. From the evidence on record, it is clear that the prosecution has successfully proved that on 08.11.2009 the accused was in possession of 300 grams Heroin, when he was apprehended by the police officials. But, the FSL report dated 18.01.2010, Ex.PW8/D has proved that the same contained only 0.4% diacetylmorphine. No other report has been given regarding any other derivative of Heroin/Smack. Therefore, it is clear that the net content of diacetylmorphine, in a total of 300 grams of Heroin, was only 1.2 grams. As the notification bearing No. S.O. 2941 (E) was FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 18/23 promulgated on 18.11.2009, only the net drug content has to be seen by the Court as the recovery was affected on 08.11.2009, and not the entire quantity of the recovered substance. The notification dated 18.11.2009, cannot be given a retrospective effect. In the present case, the net content of diacetylmorphine, in the recovered Heroin is only 1.2 grams and therefore, as per the earlier notification bearing No. S.O. 1055 (E), dated 19.10.2001, the same is only a 'small quantity'.
27. In view of the above discussion, I am of the considered opinion that the prosecution has succeeded in proving its case against the accused, only for the offence punishable U/s 21 (a) of the N.D.P.S. Act. Accordingly, the accused is hereby held guilty & is convicted for the offence punishable U/s 21 (a) of the N.D.P.S. Act.
Let the convict be heard on the point of sentence. It is ordered accordingly.
Announced in the open court Brijesh Kumar Garg on this 30th day of November, 2013. Special Judge NDPS (NorthEast) ASJ:KKD Courts, Delhi.
FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 19/23 IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE(NDPS)/ADDL.SESSIONS JUDGE (NORTH EAST) : KARKARDOOMA COURTS, DELHI SC No. 02/2010 FIR No. 192/2009 PS Crime Branch Under Section 21 N.D.P.S. Act Case ID 02402R0004682010 State Versus Mohd. Sikander S/o Mohd. Safiq, R/o Bara Dari Sarai Hussain Begum, Bur Ka Kuan, Muradabad, (U.P.) Date of Judgment 30.11.2013 Date of order on sentence 30.11.2013 ORDER ON "QUANTUM OF SENTENCE"
1. Vide judgment dated 30.11.2013, the accused Mohd. Sikander S/o Mohd. Safiq, was convicted for the offence punishable U/s 21 (a) of the NDPS Act, 1985.
2. Sh. Dharam Chand, Ld. Substitute APP for the State and FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 20/23 Sh. Sarfaraz, Advocate, for the convict have addressed their arguments on the point of quantum of sentence, today. It has been argued by the Ld. APP for the State that convict was found in possession of 300 grams of 'Heroin' and therefore, he should be awarded "Exemplary and deterrent Sentence".
3. On the other hand, Sh. Sarfaraz, Advocate, for the convict has argued that the convict is about 28 years of age and is having old aged parents and three minor siblings, in his family and he is the sole bread earner for his family. He has further argued that the convict is having no previous criminal record and therefore, a lenient view may be taken against him. He has further argued that the convict has remained in judicial custody for a period of about four months and therefore, he may be sentenced, for a term of imprisonment, for the period already undergone by him.
4. I have given my considered thought to the arguments addressed by the Ld. Addl. PP for the state and the Ld. defence counsel. The punishment for the offence punishable U/s 21 (a) of the NDPS Act, 1985 is provided as under:
"21. Punishment for contravention in relation to manufactured drugs and preparations. Whoever, in contravention of any provision of this Act or any FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 21/23 rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports interState, exports interState or use any manufactured drug or any preparation containing any manufactured drug shall be punishable,
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;"
5. In the present case, the convict was apprehended with 300 grams of 'Heroin', but it contained only 0.4 % diacetylmorphine, i.e. net 1.2 grams diacetylmorphine, which is only a "small quantity". Furthermore, the convict has remained in judicial custody w.e.f. 08.11.2009 to 08.03.2010, i.e. for a period of four months.
6. In the facts and circumstances of the present case and keeping in view the age of the convict, his family background and social and economic status, and the period already undergone by him, in judicial custody, during the trial, the convict is hereby sentenced to undergo a term of rigorous imprisonment for the period already undergone by him, till date and to pay a fine of Rs.1,000/ for the offence punishable U/s 21 (a) of NDPS Act, 1985. In case of default of payment of fine, the convict shall further undergo rigorous imprisonment for a period of 15 days. The benefit of Section 428 FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 22/23 Cr.P.C. is extended to the convict. Fine has been deposited by the convict.
It is ordered accordingly.
File be consigned to record room, after due compliance.
Announced in the open court Brijesh Kumar Garg on this 30th day of November, 2013 Special Judge NDPS (NorthEast) ASJ:KKD Courts, Delhi.
FIR192/2009 PSCrime Branch ASJ/Special Judge NDPS (N/E) Page 23/23