Delhi District Court
State vs Hafizullah on 28 September, 2011
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus Hafizullah
S/o Sh. Asadulla
R/o Zadi Nadir Pastoon,
Kabul, Afghanistan.
SC No. : 07A/10
FIR No. : 15/10
U/S : 21 NDPS Act
PS : Saket
ORDER ON SENTENCE
After the accused has been convicted by this court
for offence punishable U/S 21(b) of the NDPS Act vide
judgment dated 28.09.2011 of this court, arguments have been
heard today on the point of sentence as advanced by Sh. R.K.
Gurjar, Ld. Additional PP for the State and Sh. Rahul Tyagi,
Ld. Counsel for the convict.
2. It has been submitted on behalf of the State that
the maximum term of imprisonment be imposed upon the convict
and he does not deserve any leniency from this court as the
manner in which he was carrying the contraband substance,
after having swallowed the packets in which it was
SC No. : 07A/10 State Vs Hafizullah
FIR No. : 15/10
PS : Saket
2
contained, shows that he was a professional carrier of the
contraband substances. He has also argued that the offence
committed by the accused is not an offence against an
individual but an offence against the society at large.
3. On the other hand, Ld. Defence Counsel has argued
that the convict is a poor man aged only about 23 years at
present and is having only an old mother to look after in
his native country of Afghanistan. It has also been argued
by Ld. Defence Counsel that had the accused been a
professional carrier of drugs, he would not have put his
life in danger by carrying the above contraband substance in
the manner in which it has been established on record. It
is also been stated that this was the first visit of the
convict to India and prior to that he had never visited
India or any other country. Hence, it has been requested on
behalf of the convict that he be sentenced to the period of
imprisonment already undergone by him.
4. I have thoughtfully considered the above
submissions being advanced on the point of sentence. The
convict has been found guilty for the offence punishable U/S
21(b) of the NDPS Act which carries a punishment of R.I.
extending upto 10 years and a fine extending upto Rs. 1 Lac.
Though it has been submitted on behalf of the convict that
SC No. : 07A/10 State Vs Hafizullah
FIR No. : 15/10
PS : Saket
3
it was his first visit out of his native country, but this
court is unable to verify his above plea at this stage
because though the passport of the convict was found by his
side at the time of his admission in the hospital and the
same was also handed over to the IO SI Dalip Kumar, as he
was at that time, but for the reasons best known to him he
had not placed the same on record. However, it is a matter
of record that the convict was admitted in the Max Hospital,
Saket in a very critical condition, apparently because of
one of the packets containing contraband substance which had
disintegrated in his stomach. No previous involvement of
the accused in any similar case has been alleged by the
prosecution and he is very young and has yet to settle in
his life. He was arrested in this case on 22.01.2010 and is
in custody since then.
5. Therefore, keeping in view his young age and the
totality of the facts and circumstances I sentence him to
Rigorous Imprisonment for a period of 2 years and a fine of
Rs. 20,000/-. In case of non payment of fine he shall
further undergo Simple Imprisonment for a period of one
months. The period of custody already undergone by the
convict is allowed to be set off in terms of the provisions
of Section 428 Cr.P.C. Fine has not been paid by the
convict. Let him to undergo the above sentence as per law
SC No. : 07A/10 State Vs Hafizullah
FIR No. : 15/10
PS : Saket
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and after completion of the sentence and subject to the
outcome of any appeal which may be filed against this
judgement and order on sentence, the Jail Superintendent is
directed to ensure that the convict is repatriated to his
native country of Afghanistan.
6. A copy of the judgment and the order on sentence be
supplied to the convict free of cost. The case property be
also confiscated and disposed of as per law, subject to the
outcome of any appeal to be filed against this judgement and
order on sentence.
Announced in the open
court on 29.09.2011 (M.K.NAGPAL)
Additional Sessions Judge
South & South East District
Saket Court Complex
New Delhi
SC No. : 07A/10 State Vs Hafizullah
FIR No. : 15/10
PS : Saket
5
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus Hafizullah
S/o Sh. Asadulla
R/o Zadi Nadir Pastoon,
Kabul, Afghanistan.
SC No. : 07A/10
FIR No. : 15/10
U/S : 21 NDPS Act
PS : Saket
Date of institution : 20.03.2010
Date of reserving judgment : 26.09.2011
Date of pronouncement : 28.09.2011
J U D G M E N T
The accused has been sent to face trial by SHO PS Saket on allegations that on 21.01.2010 & 22.01.2010 at different times, while the accused was admitted in the ICU of Max Hospital, Saket, New Delhi, some cylindrical packets were recovered from the possession of the accused, which he had vomited out and emitted out of his rectum, which contained total 53.68 gms of heroin and by possessing the above packets containing heroin and by carrying the same in his stomach, in contravention of the provisions of Section SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 6 8(c) of the NDPS Act, the accused had committed an offence punishable U/S 21(b) of the above said Act.
2. The prosecution story, in brief, is that on 19.01.2010 the accused Hafizullah was found outside the emergency room of the Max Hospital, Saket, alongwith his passport and was identified as such on the basis of the passport. The condition of the accused was found to be critical as he was completely disoriented and the symptoms shown by the accused were suggestive either of some unknown poisoning or the drug overdose. The accused was examined in the above hospital vide MLC Ex. PW4/A by Dr. Shafat Ahmed and was advised some tests. He was also found to be unfit for making any statement and since his condition was critical, he was sent to ICU and was put on ventilator.
3. As per the prosecution story the accused had vomited out three small cylindrical shaped packets containing some white colour suspected narcotic substance and some tape pieces on 21.02.2010 & 22.01.2010 and the same were noticed by some nurse and she in turn had informed the doctor in this regard. The doctor concerned had intimated the above fact to the complainant Sh. Jai Prakash, who is the assistant security officer of the above hospital, and he in turn had intimated the police officials of PS Saket and SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 7 the above intimation was recorded in the PS vide DD No. 19A Ex. PW1/B and the same was assigned to the IO/PW12 Insp. Dalip Kumar, who was a Sub Inspector at that time.
4. It is alleged that the IO/PW12 had then reached in the above hospital alongwith some other police officials and had recorded the statement of the above Sh. Jai Prakash, who had also handed over the above packets and pieces of tapes kept in a transparent polythene to the IO and on testing with the help of a field testing kit, the IO/PW12 had identified the above substance of the packets as cocaine. IO/PW12 had also made some enquiries from the accused through PW5 Sh. Temur Shah, who was working as an interpretor of Afghani language in the said hospital, regarding the above substance and the accused had also confirmed the same to be cocaine and then the IO/PW12 had intimated the SHO and the ACP concerned regarding the above recovery of the contraband substance.
5. It is also alleged by the prosecution that then the IO/PW12 had given a notice U/S 50 of the NDPS Act Ex. PW11/D (carbon copy is Ex. PW12/A) to the accused through the above interpretor while apprising him of his legal right to be searched in the presence of a Magistrate or a Gazetted Officer and had also offered the search of the police SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 8 officials to him, if he so desired, but the accused had refused for the same. However, in the subsequent search of the accused conducted by the IO/PW12 no further incriminating substance was recovered. IO/PW12 had then weighed the substance contained in the above packets and their weight was found to be 7.53 gms, 7.81 gms and 8 gms respectively and the above packets were given Srl. No. 1, 2 & 3 by him. He had taken out two samples of 1 gm each of the substance from each of the above packets and the same were wrapped in white papers and kept in separate transparent polythene pouches and were given Srl. No. 1A, 1B, 2A, 2B & 3A, 3B respectively. The remaining substance of the above packets was also repacked in the same manner and the empty pouches, in which the above contraband substance was originally found, were also wrapped in white papers and kept in separate polythene pouches and were given Srl. No. 1C, 2C & 3C respectively and separate cloth pullandas of all the above samples, remaining case property and the pouches were prepared and were sealed with the seal of DK. The 9 pieces of plastic tape were also kept separately in a plastic pouch and a cloth pullanda thereof was also similarly prepared, sealed and given Srl. No.4. Form FSL was also filled up at the spot and the same seal affixed thereon and the seal after use was handed over to HC Devender and all the pullandas and the FSL form were taken SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 9 into possession by the IO/PW12 vide seizure memo Ex. PW5/B and in the meanwhile the SHO/PW13 Insp. Pankaj Singh had also arrived at the spot and the pullandas, FSL form and a copy of the seizure memo were handed over to him. The SHO/PW13 Insp. Pankaj Singh had then affixed his seal of PS on the pullandas and FSL form, enquired the accused through the interpretor and had left the spot with the above pullandas and the documents, the IO/PW12 had then sent a rukka Ex. PW12/B to the PS through PW9 HC Mahipal (Constable at that time) for registration of a case.
6. It is also alleged in the chargesheet that while the IO/PW12 was still busy at the spot in the investigation, PW7/complainant Sh. Jai Prakash had produced one more small cylindrical shaped plastic packet before the IO/PW12 while saying that the same had come out of the rectum of the accused and was handed over to him by PW1 Dr. Omender Singh. The IO had opened the above packet by removing the tapes thereof and the substance found in the above packet had also tested positive for cocaine with the field testing kit and the accused had also confirmed it to be cocaine through the above interpretor. Information in this regard was also given to the SHO and the ACP concerned and the weight of the packet was found to be 7.21 gms and two samples of 1 gm each were also drawn out of the above packet and the pullandas of SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 10 the samples, the remaining substance, the empty packet with cello tape were similarly prepared and sealed by the IO and Srl. No. 5 was given to the remaining substance, Srl. No. 5A & 5B to the sample pullandas and 5C to the pullanda of empty packet and cello tape. One FSL form with regard to the same was also filled up and similarly sealed and the pullandas and the FSL form were taken into possession vide seizure memo Ex. PW5/A and the same as well as a copy of the seizure memo were subsequently handed over by the IO/PW12 to the SHO in the PS, who had affixed his seals on the pullandas and FSL form, and had deposited them in the malkhana.
7. It is also alleged that on the next date, i.e. on 23.01.2010 also the above PW7 Sh. Jai Prakash had again handed over three more similar packets containing similar substance to the IO/PW12 during investigation while telling him that the same had been taken out from the stomach of the accused through the UGI Endoscopy at about 04.00 pm on that day. The above three packets were also opened after removing the tapes affixed thereon and the substance thereof had also tested positive for cocaine and the accused had also confirmed the same to be cocaine, through the interpretor. The weight of the contraband substance contained in these packets was found to be 7.53 gms, 7.76 gms and 7.84 gms and two samples of 1 gm each were also SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 11 drawn out of each of these packets and separate cloth pullandas of the samples, the remaining substance, the empty packets with cello tape were similarly prepared and sealed by the IO and Srl. No. 6, 7 & 8 was given to the pullandas of the remaining substance, Srl. No. 6A, 6B, 7A, 7B & 8A, 8B to the sample pullandas and 6C, 7C & 8C to the pullandas of empty packets and cello tapes. One FSL form with regard to the same was also filled up and similarly sealed and the pullandas and the FSL form were taken into possession vide seizure memo Ex. PW5/C and the same as well as a copy of the seizure memo were subsequently handed over by the IO/PW12 to the SHO in the PS, who had affixed his seals on the pullandas and FSL form, and had then deposited the same in the malkhana.
8. It is also a part of the chargesheet that subsequent to his discharge from the hospital, the accused was interrogated in detail and he had allegedly disclosed that he had brought the above cocaine, after having concealed the same in his stomach, from Afghanistan, alongwith his one associate named Mohd. Masood and the same was to be supplied to one Hidayatullah residing in Khirki Extension, Malviya Nagar, but on 19.01.2010 his condition had suddenly deteriorated and the above Mohd. Masood had left him abandoned in the above hospital. The IO had also SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 12 tried to trace out the above associates of the accused, but with no success as the above Mohd. Masood was found to had left India on 23.01.2010 for Afghanistan and the above Hidayatullah could not be traced and his LOC was got opened. The IO had also subsequently sent the samples pullandas to FSL for testing and had prepared and filed the chargesheet in this court, after conclusion of the other formalities and pending the receipt of the FSL result.
9. The chargesheet was filed in this court on 20.03.2010 and cognizance thereof was taken. However, the FSL result was received in this court subsequently and it was opined therein that the 7 samples sent for testing were only found to contain, inter-alia, diacetylmorphine ranging between 20.7% to 34.6%. Since the above samples had not tested positive for cocaine in the FSL analysis, a prima facie case was found to be made out against the accused for the offence punishable U/S 21(b) of the NDPS Act with regard to the possession of a total quantity of 53.68 gms of heroin only and a charge for the said offence was also framed against him, to which the accused had pleaded not guilty and claimed trial.
10. The prosecution in support of its case has examined total 13 witnesses on record and their names and the purpose SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 13 of examination etc. is being stated herein below :-
(i) PW1 HC Daya Nand is the Duty Officer of this case and he has proved on record a copy of the FIR recorded by him as Ex. PW1/A. He has also brought on record a copy of DD No. 19A as Ex. PW1/B.
(ii) PW2 Dr. Omender Singh was the In-charge of the ICU of Max Hospital, Saket on 19.01.2010 when after his initial examination in the emergency department of the said hospital, the accused was sent to the ICU in view of his critical condition and was put on the ventilator. He has stated that after few days, i.e. 1/2 days, the accused had regained his consciousness and was removed from the ventilator and was his Urine Toxicology Screen Test was positive for Opoid and PCP and on 21.01.2010 he had vomited two pieces of some pouch containing some whitish material, which was noticed on his bed side by a nurse and she in turn had informed him and the Duty Doctor. He has also stated that since it was not a normal vomit, the security personnel of the hospital were informed and they in turn had informed the local police. He has also stated that for ascertaining any further presence of such material in his stomach, the accused was referred to the Gastro Enterologist and Enema was also given to him and one other pouch had passed through SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 14 his stool. He had further stated that he had prepared three reports regarding the treatment of the accused and the same are Ex. PW2/A, PW2/B & PW2/C, the discharge summary of the accused is Ex. PW2/D and he has also identified the accused.
However, in his cross examination, he has stated that none of the above pouches was taken out from the stomach or was recovered in his presence.
(iii) PW3 Dr. Suneel Chakravarthy was working in the Gastro Enterology Department of the above hospital at the relevant time and he had performed the Endoscopy of the accused wherein he had found four sachets in his stomach and he has deposed about his report Ex. PW3/A on record in this regard. He has also stated that one of such sachet was noticed by him to be partially disintegrated. However, though the witness was able to tell the name of the accused, but he has expressed doubts about his ability to identify him due to lapse of the time.
(iv) PW4 Dr. Shafat Ahmed had examined the accused in the emergency of the said hospital on 19.01.2010 vide MLC Ex. PW4/A and has also identified the accused.
(v) PW5 Sh. Temur Shah was working as an Interpretor of Afghani and Irani languages in the said hospital at the SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 15 relevant time and he was called by the security head of the hospital to assist the police officials in communicating with the accused. He has stated that the accused Hafizullah was admitted in the ICU at that time and he was apprised by the police that the accused had vomited some ' gottas ' (cylindrical packets) wrapped with cello tapes and so far as he remembers, there were 4/5 ' g ottas ' and on checking the contents of the same were found to be cocaine by the police. He has also stated that the above ' g ottas ' were weighed and sealed in his presence. He has also stated that on the next date Endoscopy and Colonoscopy were done on the accused and some other ' g ottas ' were taken out from his body and these ' g ottas ' also contained cocaine. However, he has also stated that he is not aware as to what the police had done with the above ' g ottas ' as he was only called for interpretation. He has also identified his signatures on the above three seizure memos Ex. PW5/A, PW5/B & PW5/C as well as the arrest memo and personal search memo of the accused Ex. PW5/D & PW5/E respectively. In reply to some leading questions put to him by the Ld. Additional PP for the State, he has though stated that the police had given some notice to the accused for conducting his search, but he was not able to remember if it was a written notice and if the reply of the accused was also recorded in writing. He has also identified the remaining contraband SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 16 substance marked as Serial No. 1, 2, 3, 5, 6, 7 & 8 as Ex. P1 to P7. In his cross examination conducted by Ld. Defence Counsel he has also stated that the police officials had not asked him to tell the accused that if he desired his search could be taken in the presence of a Magistrate or a Gazetted Officer and the above ' g ottas ' were not vomited by the accused in his presence.
(vi) PW6 HC Abhay Raj was the MHC(M) of the PS on 22.01.2010 when total 13 sealed pullandas, sealed with the seals of DK & PS, were deposited with him in the malkhana, alongwith FSL form, vide entry No. 236 of the Register No. 19 by Insp. Pankaj Singh. On 23.01.2010 also 16 (4 + 12) other sealed parcels, sealed with the same seals, were deposited with him by the above Inspector at different times. He has proved on record the above entry as Ex. PW6/A. On 24.01.2010 the IO/SI Dalip Kumar had also deposited with him one electronic weighing machine, with liquid paraffin IP in a sealed pullanda sealed with the seal of DK, and he had made a separate entry No. 239 Ex. PW6/B in this regard. On 05.02.2010 he had sent total 7 sample sealed pullandas of this case to FSL vide RCs No. 189/21 Ex. PW6/D, No. 190/21 Ex. PW6/E and No. 191/21 Ex. PW6/F respectively.
SC No. : 07A/10 State Vs Hafizullah
FIR No. : 15/10
PS : Saket
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(vii) PW7 Sh. Jai Prakash is the Assistant Security
Officer of the above said hospital and he was entrusted with the above packets containing the contraband substance and the cello tapes etc. at different times by the doctors of the hospital and had handed over the same to the police, as stated above, and he is also the informant/complainant of this case. He has also deposed about the proceedings conducted by the police in the hospital, after identification of the above contraband substance as cocaine and is also a witness of the above seizure memos Ex. PW5/A to PW5/C. The case property was not produced before him for identification as the Ld. Defence Counsel had not disputed the same. However, in his cross examination he has also stated that he was not present at the time of the recovery of the case property from the body of the accused by the doctor.
(viii) PW8 HC Yashpal is an official of the office of ACP, Hauz Khas and he has deposed about the receiving of the informantion U/S 57 of the NDPS Act Ex. PW8/A in their office vide Diary No. 438 dated 23.01.2010 Ex. PW8/B and the same was seen by the ACP.
(ix) PW9 HC Mahipal Singh was with the IO during investigation conducted in the hospital on 22.01.2010 and is SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 18 a witness of the proceedings conducted with regard to the first four packets and cello tapes pieces seized vide seizure memos Ex. PW5/B & PW5/A. Besides identifying Ex. P1, P2, P3, he has also identified the above cello tapes pieces given Serial No. 4 as Ex. P8, the remaining contraband substance given Serial No. 5 as Ex. P5 and the remnants of the samples, remaining case property etc. marked as 1A, 1B, 1C, 2A, 2B, 2C, 3A, 3B, 3C, 5A, 5B & 5C as Ex. P9A, P9B, P9C, P10A, P10B, P10C, P11A, P11B, P11C & P12A, P12B, P12C respectively. He had also identified the accused.
(x) PW10 Ct. Roop Kishore had taken the above 7 sealed sample parcels of this case to FSL, Rohini on 05.02.2010 vide the above RCs Ex. PW6/D, PW6/E & PW6/F respectively.
(xi) PW11 ASI Devender Singh (HC at that time) was also with the IO/PW12 SI Dalip Kumar during investigation dated 22.01.2010, as deposed by PW9 HC Mahipal Singh also, as well as that of 23.01.2010 when three other pouches containing contraband substance were handed over to the IO by PW7 and were seized vide the seizure memo Ex. PW5/C. He is also a witness to all the above three seizure memos and has also taken the rukka to the PS for registration of the case. He has also identified all the above exhibits of the case SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 19 property and samples etc., as well as the accused.
(xii) PW12 SI Dalip Kumar is the IO of this case and he has broadly deposed on the above lines of the prosecution story and has identified the accused. However, the case property was not actually produced before him for identification as the Ld. Defence Counsel had not insisted upon the same and had given his no objection for its exhibition, as above.
(xiii) PW13 Inspector Pankaj Singh was the SHO of PS Saket at the relevant time and he has also deposed about the entrustment of the above sealed pullandas of the case property and samples to him at different times, as stated above, alongwith the FSL forms and copies of seizure memos, and deposit thereof in the malkhana after affixation of his own seals. He has also stated that he had subsequently forwarded the report U/S 57 of the NDPS Act Ex. PW8/A sent by the IO/PW12 to the ACP concerned. During his evidence the above relevant entries of the malkhana register have again been exhibited as Ex. PW13/A & PW13/B inadvertently.
11. After the conclusion of the prosecution evidence all the incriminating evidence brought on record was put to the accused and though he has admitted that he was found in SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 20 the above said hospital on 19.01.2010 and was admitted and treated therein, but he has expressed his ignorance about the vomiting of the above packets containing any contraband substance and has also denied the recovery of any packet through his stool. He has also express his ignorance about the proceedings conducted by the police with regard to the same and has also denied the other incriminating circumstances. Though he had stated it to be correct that in his Endoscopy examination it was revealed that some foreign material/pouches were still left in his stomach, but it appears to be a typographical mistake only as his statement when read in entirety suggests that he has denied all the above recoveries from him either for want of knowledge or to be incorrect. He has also claimed that he had come to India on 14.01.2010 as a visitor and was staying with his friends and on 17.01.2010 he was having a party with his friends Hidayatullah and Masood at their place and he had refused for the alcohol offered to him by them. It had resulted into fight between them and as a result of the fight and the beatings given to him he got serious and his friends had also made him drink excessive alcohol, due to which he had passed out and had regained his consciousness in the above said hospital only on 22.01.2010 or 23.01.2010. He had specifically expressed ignorance about the happenings between 17.01.2010 to 23.01.2010 and has also claimed that SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 21 he never consumed any capsules containing any contraband substance. However, no defence evidence has been led by the accused.
12. I have heard the arguments advanced by Sh. R.K. Gurjar, Ld. Additional PP for the State and Sh. Rahul Tyagi, Ld. Counsel for the accused.
13. It has been argued by Ld. Additional PP for the State that the prosecution has proved its case on record beyond reasonable doubts as the oral evidence led on record is duly substantiated by the documentary evidence brought on record during the depositions of the doctors and other witnesses of the hospital and also the police officials, which leave no scope for acquittal of the accused. He has also argued that the evidence led on record clearly proves out that the above packets containing a contraband substance were recovered from the accused, through his vomit or stool, as the same were in the stomach of the accused.
14. On the other hand Ld. Defence Counsel has argued that it is virtually a case of no evidence against the accused because none of the witnesses examined on record has stated that any of the above packets containing any contraband substance was recovered from the accused in his SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 22 presence or by him. He has also stated that the documents brought on record during the depositions of PW2 as Ex. PW2/A, PW2/B, PW2/C & PW2/D, which are the treatment reports and the discharge summary of the accused, and PW3 Dr. Suneel Chakravarthy as Ex. PW3/A, which is the Endoscopy report of the accused are not admissible in evidence as they have not been proved as per the provisions of the Evidence Act. It has also been argued that though notice U/S 50 of the NDPS Act was not required to be given for the alleged initial recovery of four packets, i.e. three packets at a time which were allegedly vomited out by the accused and one other packet which had passed out of his stool, but the subsequent recovery of three packets cannot be considered against the accused as the prosecution has failed to prove on record the compliance of the mandatory provisions of Section 50 of the NDPS Act because PW7 Sh. Temur Shah, the interpretor of Afghani language has not supported the prosecution case regarding the service of the above notice. He has also assailed the prosecution case on some other aspects, but first the above arguments of Ld. Defence Counsel are being taken up for discussion and disposal.
15. The first contention of Ld. Defence Counsel is that the prosecution has not produced on record any witness in whose presence the initial three packets being the subject SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 23 matter of the seizure memo Ex. PW5/B or the one other packet being the subject matter of the seizure memo Ex. PW5/A, both dated 22.01.2010, were vomited out or recovered in the stool of the accused, as stated above. He has also argued that PW2 Dr. Omender Singh in his statement has only stated that he was informed by a nurse that she had noticed some pouches containing some whitish material by the bed side of the accused and in his cross examination he has specifically admitted that the above packets / pouches were not taken out from the stomach or recovered in his physical presence. It has also been argued that the IO had failed to examine the above nurse on record and hence there is virtually no evidence regarding the recovery of the initial three packets in the vomit of the accused.
16. On appreciation of the prosecution evidence it is found that PW4 Dr. Shafat Ahmed had clearly deposed on record that on 19.01.2010 the accused was found outside the emergency room of the above hospital in a critical condition and during the course of recording of his statement U/S 313 Cr.P.C. the accused has also specifically admitted this fact. The symptoms of the accused were suggestive either of some unknown poisoning or of the drug overdose and the accused was examined vide MLC Ex. PW4/A, which stands duly proved on record from the depositions of PW4 and has also SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 24 not been challenged on behalf of the accused. The critical condition of the accused is clearly reflected in the MLC and it also stands proved from the depositions of PW4 as well as of PW2 Dr. Omender Singh that the accused was sent to ICU and was put on ventilator.
17. Though admittedly the prosecution has not produced on record any witness in whose actual physical presence the initial three packets containing the above contraband substance were vomited by the accused, but the evidence led on record is sufficient to bring this court to the conclusion about the correctness of the same. There are specific depositions made by PW2 on record that some packets were vomited out by the accused and he was informed in this regard by the nurse on duty and PW2 is the concerned doctor in whose supervision the accused was lying admitted in the ICU of the above said hospital. The accused had just regained his consciousness at that time and there is hardly any reason to entertain any doubts about the veracity of the depositions of PW2 as the same are corroborated by the condition of the accused as reflected in his MLC Ex. PW4/A and also by subsequent events leading to the further recovery of some similar packets which had come out of the stool of the accused or were taken out subsequent to his Endoscopy examination. Though during the statement of PW2 SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 25 he had stated the date of vomiting out of the two packets by the accused to be 21.01.2010, but on appreciation of the entire evidence led on record it is found that only two pieces of tapes were initially vomited out by the accused on 21.01.2010 and some other pieces of tape and three packets containing the above contraband substance were actually vomited out by the accused on 22.01.2010. The above oral depositions made by PW2 in this regard during his statement are liable to be ignored as the same can only be attributed to the lapse of time.
18. Further, the oral depositions made by PW2 with regard to the recovery of the three recovery packets containing the above contraband substance in the vomit of the accused are also duly corroborated by the contents of the medical certificate/report dated 22.01.2010 Ex. PW2/A as it is specifically mentioned therein that on 21.01.2010 only two pieces of tape were vomited out by the accused and on 22.01.2010 he had vomited three other pieces of tape which were filled with some whitish material. Though the Ld. Defence Counsel has contented that the treatment reports/certificates Ex. PW2/A, PW2/B & PW2/C given by this witness do not stand prove during his depositions, but his above contention is not acceptable as these are the reports given and signed by this witness and he has specifically SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 26 deposed about the same in this court and it is never accepted from such a witness to just repeat the contents of such documents verbatim during his statement in the court. No suggestion has been given by ld. Defence Counsel to this witness that his above depositions regarding the vomiting of the above packets containing contraband substance by the accused are false. There was also hardly any possibility of the mixing of the vomit of the accused with any other patient or the recovery of the above packets from the vomit of any other patient and it is only a hypothetical argument as even no suggestion in this regard has also been given to PW2 on any other witness of the above hospital. In view of the above, it can be said that the prosecution has led on record sufficient evidence to prove that the initial three packets containing the contraband substance which are the subject matter of the seizure memo Ex. PW5/B, were vomited by the accused while being admitted in the ICU of the above hospital.
19. Now coming to one packet which is alleged by the prosecution to had come out of the stool of the accused and the other three packets which were taken out from the stomach of the accused through the process of UGI Endoscopy, which were seized vide seizure memos Ex. PW5/A & PW5/C respectively, it is observed that PW2 in his statement has SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 27 also specifically stated that since the above vomit of some packets by the accused was not a normal vomit, they wanted to ascertain if any such further substance was still left out in the stomach of the accused and for that the accused was referred to the Gastro Enterologist, who had advised Endoscopy of his stomach. He has also deposed that in the Endoscopy it was revealed that there are still some foreign material / pouches lying in the stomach of the accused, which appeared to be tightly wrapped with some object and the same was subsequently removed by the Gastro Enterologist. He has further stated that the accused was also given Enema and one pouch had also passed through his stool and all the above pouches were subsequently handed over to the local police. He has also deposed about his reports Ex. PW2/B & PW2/C prepared in this regard.
20. On perusal of the above said report Ex. PW2/B it is found that the same is with regard to one sachet containing some whitish material which had passed from the rectum of accused after Enema and the above report is duly signed by PW2 at point A thereon. The report Ex. PW2/C is with regard to the other three sachet containing some white material which were retrieved from the stomach of the accused after the UGI Endoscopy of the accused and this report is also signed by the above witness at point a thereon. In both SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 28 these reports the name and other particulars of the accused are mentioned and the witness has also specifically deposed about these reports and there does not appear to be any force in the argument of Ld. Defence Counsel that these documents do not stand proved on record from the depositions of this witness because the witness is the author of these documents and he is also the concerned person in whose supervision the accused was lying admitted in the ICU of the said hospital and he has also specifically referred to about the contents of these documents. As also stated above, the witness was never expected to reproduce verbatim the contents of these documents.
21. On appreciation of the prosecution evidence it is also observed that PW3 Dr. Suneel Chakravarthy is the concerned Gastro Enterologist who had conducted the Endoscopic examination of the accused and he has also specifically stated in his statement made in this court that he had found four sachet in the stomach of the accused and the patient was conscious and cooperative at the time of conduction of the above examination. He has further stated that one of the above four sachet was partially disintegrated and he had prepared his report Ex. PW3/A regarding the Endoscopy done by him. The original of the above report was already a part of the chargesheet and has SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 29 also been marked as Ex. PA during the statement of the IO/PW12. The above report is dated 22.01.2010 and as per the same the UGI Endoscopy of the accused was conducted on the above day at about 06.32 pm.
22. It is observed from the record that in total there are three different reports of Endoscopy and Colonoscopy of the accused on record and though the original of the Endoscopy report Ex. PW3/A was already a part of the chargesheet and on record, but the originals of the three other reports were also produced in this court at the time of examination of PW3 and it appears that exhibit Mark PW3/A has been placed inadvertently only on one report dated 22.01.2010 Ex. PW3/A and no exhibit mark, either individually or collectively, was put on the other two documents, i.e. one other Endoscopy report dated 23.01.2010 and one Colonoscopy report also dated 23.01.2010 of the accused. Ld. Defence Counsel has not disputed this fact and has himself referred to the above Endoscopy report dated 23.01.2010 to point out some discrepancy with regard to the dates of recovery of the above packets as mentioned in the charge framed against the accused.
23. As per the Endoscopy report dated 23.01.2010 the above three packets, which were seen in the earlier SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 30 Endoscopy report dated 22.01.2010, were removed from the stomach of the accused and no residual material was left out in the stomach of the accused. Ld. Defence Counsel has not disputed the above documents, but his only contention is that the Endoscopy report dated 23.01.2010 does not stand proved from the depositions of PW3 as he has not specifically stated that the above packets were removed by himself. However, his above contention is found to be not acceptable in view of the reasons, as discussed above qua the other documents proved by PW3 himself as well as PW2 Dr. Omender Singh. It is also observed that during the course of cross examination of this witness no suggestion was given to him from the side of the accused that the above packets containing the above contraband substance were not seen by this witness in the stomach of the accused or were not removed by him and the accused cannot be permitted to dispute the above fact at this belated stage and that too when the above reports have been given by PW3 who had himself seen and removed the said packets, as per the reports. Hence, in view of the above, it can also be said that prosecution has led on record enough material to prove that the subsequent four packets, which are the subject matter of the seizure memos Ex. PW5/A & PW5/C were also in the stomach of the accused and were recovered while he was being treated in the above said hospital, i.e. one through SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 31 his stool and the other three during the Endoscopy process.
24. Though the Ld. Defence Counsel has relied upon judgements in cases Srichand P. Hinduja & Ors. Vs. State through CBI-2005 (82) DRJ 494 and Chakravarthy Vs. State by Koramangla Police, Bangalore MANU/KA/0443/2001, but both the above judgements are found to be not applicable to the facts and circumstances of this case. The judgement in case of Srichand P. Hinduja-Supra only relates to the competency of a witness to prove the contents of a documents and in the instant case both PW2 & PW3 were very much competent to prove the documents brought on record in their statements and the same were even referred to by them. As far as the other judgement in case Chakravarthy-Supra is concerned, the same was also given in a different context when the panch witnesses had not supported the prosecution and even the IO had not made any whisper about the document during his statement.
25. Now coming to the contention of Ld. Defence Counsel that the recovery of the above four packets, subsequent to the service of the alleged notice U/S 50 of the NDPS Act Ex. PW12/A (original notice is Ex. PW11/D) to the accused, is bad and cannot be considered incriminating against the accused as virtually there is no compliance of the SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 32 provisions of Section 50 of the NDPS Act because there is no evidence on record to show that the notice U/S 50 of the NDPS Act was in fact given to the accused. It is so because as per him the depositions of the police witnesses in this regard have not been corroborated by the depositions of PW5 Sh. Temur Shah, who was the interpretor of the Afghani language joined during investigation by the IO. It is argued that PW5 on this aspect has not supported the version of the police witnesses because he has stated in his cross examination that he was not asked by the police official to tell the accused that if the accused desired, his search could be taken in the presence of a Magistrate or a Gazetted Officer.
26. The depositions of PW5 have been scrutinised and though in his examination in chief he has stated that some notice with regard to the conduction of the search of the accused was given to him by the police through him, but he has not supported the prosecution case that the above search was offered to be conducted in the presence of a Magistrate or a Gazetted Officer, as required by Section 50 of the NDPS Act, though he was not formally got declared hostile by the Ld. Additional PP for the State and was hence not cross examined by him. However, even if his above depositions in this regard are ignored, there is sufficient evidence led by SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 33 the prosecution on record that the accused was questioned and interrogated in the hospital by the IO/PW12 through PW5 and the IO/PW12 himself as well as PW9 HC Mahipal Singh and PW11 ASI Devender Singh have all specifically deposed regarding the service of the above notice Ex. PW12/A (carbon copy) to the accused. Even the reply of the accused Ex. PW11/A recorded on the above notice has been proved on record from the depositions of these witnesses, which was recorded on the interpretation of PW5 in their presence. The original notice U/S 50 of the NDPS Act was also subsequently recovered in the personal search of the accused and the same has been brought on record as Ex. PW11/D. Hence, even in the absence of any support from the depositions of PW5 in this regard, the depositions of the other police witnesses are sufficient to prove the service of the above notice upon the accused.
27. However, now it is to be seen if any such notice was in fact required to be served upon the accused in the facts and circumstances of this case when the contraband substance was not found on the ' p erson ' of the accused, but it was found concealed inside the stomach of the accused. Though no case law has been cited on behalf of the prosecution or of the defence on this aspect, but I have been able to lay my hands on a judgement dated 25.06.2002 SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 34 given in a Criminal Appeal by the Hon' b le High Court of Kerela in case titled Abdulla Ibrahim Vs. State of Kerela. In the above case the accused was convicted U/Ss 21 & 28 of the NDPS Act as during his X-ray examination at the airport it was found that he had swallowed 102 capsules containing brown sugar and two other big capsules containing the same substance were also found inserted into his rectum. Though initially the accused had refused to cooperate for his medical examination, but his X-ray examination was subsequently conducted in the presence of a Gazetted Officer of the Customs Department and the above capsules were seen in his such medical examination. In appeal it was argued on behalf of the accused before the Hon' b le High Court that the recovery of the above contraband substance contained in the above capsules was bad for non compliance of the provisions of Section 50 of the NDPS Act, but the above argument was rejected by their Lordships while holding that though a Gazetted Officer of the Customs Department was joined and present at the relevant time, but even otherwise no notice U/S 50 of the NDPS Act was required in the said case. The following observations, inter-alia, were made by their Lordships while dealing with the above argument :-
" I have heard the Learned Public Prosecutor, according to whom, the appellant is a professional carrier, who had undertaken similar missions in the past also and his SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 35 expertise is revealed by the fact that he could swallow as many as 102 capsules beside the capacity to carry two big capsules in his rectum. As regard the compliance with Section 50 of the NDPS Act, it is pointed out that the seizure was effected in the presence of PW3, who is a Gazetted Officer, notwithstanding the fact that in a case where contraband is brought out from inside the body through medical help, Section 50 of the NDPS Act is not attracted. "
28. Moreover, the sole objective of the legislature behind incorporation of Section 50 of the NDPS Act in the said Act is only to provide authenticity to the search proceedings of an accused suspected of being in possession of a narcotic drug or contraband substance as the offences attracted by it are grievous in nature and carry stringent punishments. It is with this intention it has been prescribed in the said Section that if the accused so desires then his search should be conducted in the presence of a Magistrate or a Gazetted Officer and now it has also been held in many pronouncements of the Hon' b le Supreme Courts as well as of different High Courts that the above provision is not a mere formality and rather it is the legal right of the accused to get his search so conducted, but it has also been held that the above provision is applicable only when the search of ' p erson ' of an accused is involved and not in case of search of his baggage etc. or any bag, briefcase etc. being personally carried by him. The purpose SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 36 behind incorporation of the above provision is only to rule out the planting of any such contraband substance upon the accused and to prevent him being falsely implicated and to be victimised at the hands of the police officials or other similar agencies.
29. But in the instant case where the contraband substance has been swallowed by the accused or in any other case where the same may be implanted inside the body of the accused, there is hardly any possibility of planting of such substance upon the accused falsely by the police officials and hardly any purpose can be served by taking the external search of the ' p erson ' of the accused, even in the presence of a Magistrate or a Gazetted Officer. Hence, in the considered opinion of this court Section 50 of the NDPS Act has not been incorporated for such an eventuality and for such a case and this Section has got no applicability where the contraband substance is found from inside the body of an accused. In view of the above and the prepositions of law as laid down in the case of Abdulla Ibrahim-Supra, it is held that the notice U/S 50 of the NDPS Act was in fact not required to be served upon or given to the accused. The judgements in cases State of H.P. Vs. Pawan Kumar (2005) 4 SCC 350 and Saiyad Mohd. Saiyad Umar Saiyad & Ors. Vs. State of Gujrat (1995) CLJ 2662 being relied upon by Ld. Defence SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 37 Counsel have got no applicability to the facts and circumstances of this case.
30. The next contention of Ld. Defence Counsel is that the link evidence in this case is missing because there is no evidence on record to show as to in whose safe custody the above packets containing the contraband substance were kept by the hospital authorities before the same were handed over to the IO/PW12 by the PW7/complainant. It has also been argued by Ld. Defence Counsel that the SHO/PW13 Inspector Pankaj Singh was also recalled by this court subsequently U/S 311 Cr.P.C on an application moved by the prosecution and since his name was not included in the list of prosecution witnesses and hence his statement has to be viewed with a caution, though he himself had given no objection for summoning the above witness.
31. It has come on record in the depositions of PW2 as well as PW3 that the packets which had come out in the vomit and stool of the accused were handed over to the security staff of the hospital and PW7 Sh Jai Prakash, who is the Assistant Security Officer of the above hospital and the complainant of this case, had handed over these packets to the IO/PW12 on 22.01.2010 & 23.01.2010. The evidence led on record also clearly proves that the first four packets were SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 38 recovered on 22.01.2010 and the other three packets were recovered on 23.01.2010 and these packets were handed over to the IO/PW12 on the respective dates of their recoveries itself and it has also come on record in the statement of PW7 that the same were in his custody till these were handed over to the police, Hence, there is no unusual of unnecessary delay in handing over these packets to the police and keeping in view the fact that these packets were recovered in the hospital itself and were handed over by the hospital authorities themselves to the police, there is hardly any possibility of tampering with the same and that too when the accused was a foreigner and there was no enemical relations between the accused and any official of the hospital. Hence, the argument of Ld. Defence Counsel with regard to tampering with the above packets is liable to be discarded.
32. The next argument of Ld. Defence Counsel is that though the substance contained in the above packets has been found to be containing diacetylmorphine in the FSL examination vide report Ex. PW12/F and hence to be heroin, but how the above substance had tested positive for cocaine when it was tested by the IO/PW12 with the help of a drug testing kit and this circumstance also shows the possibility of changing of the above substance by the IO/PW12 and hence SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 39 the accused is entitled to be acquitted giving benefit of doubt. I also do not find any force in this argument of Ld. Defence Counsel as had there been any intention on the part of the IO to change the contraband substance, then he could have made it sure that the sample which was being sent to the FSL for examination had to be of cocaine and not of the heroin. The above discrepancy is liable to be ignored because it happens sometimes in many cases that a substance had tested positive for a particular narcotic drug or psychotropic substance, but in the forensic examination it is found to be some different substance. It is ultimately the report of the experts which matters and has to be considered and not the report of the IO/PW12 who is only a layman for such types of chemical or biological analysis and examinations.
33. Another argument of Ld. Defence Counsel is that there is a delay of about two weeks in sending of the samples by the police to the FSL and the possibility of tampering with the samples during this period cannot be ruled out. Here also it is observed that no such evidence of any tampering with the pullandas of the case property and samples is visible from the record nor any such inference is required to be drawn for as the seals of all the 7 sample pullandas have been found to be intact and tallying with the SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 40 specimen seals as per the forwarding letter (FSL form), as mentioned in the FSL report Ex. PW12/F, which is per-se admissible in evidence U/S 293 Cr.P.C. If the Ld. Defence Counsel was having any such doubts regarding the tampering of the sealed pullandas of samples, he could have requested this court for summoning the concerned FSL expert and could have cross examined him on the above aspect. Hence, mere delay of about two weeks in sending the samples is not unusual and cannot be considered to be a ground for acquittal of the accused. Reference in this regard can be made to a recent case of our own High Court titled Bilal Ahmed Vs. State-2011 III AD (Crl.) (DHC) 293 in which even a delay of 59 days in sending of the samples was considered to be not fatal.
34. In last, the Ld. Defence Counsel has pointed out that the dates of recovery of the contraband substance in the charge have been mentioned to be 21.01.2010 & 22.01.2010 whereas as per the evidence led on record the above packets containing the contraband substance have been recovered on 22.01.2010 & 23.01.2010. In this regard also it is observed that the same may be because of a typographical mistake as the charge specifically refers to the recovery of the above packets in the vomit and through the rectum of the accused during his stay in the hospital and even the individual SC No. : 07A/10 State Vs Hafizullah FIR No. : 15/10 PS : Saket 41 weight of the contraband substance of these packets has been mentioned therein and hence the accused does not stand prejudiced thereby and he was well aware of the charge framed against him and also of the evidence led on record and hence a mere typographical mistake regarding the dates in the charge, cannot be made a ground for acquittal of the accused.
35. Thus, though the argument of Ld. Defence Counsel was that it is a case of no evidence but in the considered opinion of this court it is one of the cases in which there is strong independent oral and documentary evidence available on record in the form of depositions of the above doctors and the documents proved by them, which go to corroborate and substantiate the version of the police witnesses. It is a case where the body of the accused himself had furnished evidence against him. The serious condition of the accused at the time of his admission in the above hospital can only be attributed to one of the packets seen in his Endoscopy examination Ex. PW3/A which was found to be disintegrated and even PW3 has made specific depositions in this regard. No plausible evidence has been led by the accused in his defence to challenge the convincing evidence led on record by the prosecution.
SC No. : 07A/10 State Vs Hafizullah
FIR No. : 15/10
PS : Saket
42
36. In view of the above discussions, I hold that the prosecution has been successful in establishing on record the recovery of the above packets containing 53.68 gms of heroin from the accused as per the charge. The above quantity of heroin falls within the category of medium or intermediate quantity as 5 gms of heroin has been prescribed to be a small quantity and 250 gms to be a commercial quantity under the said Act. Therefore, the accused is held guilty and convicted for the offence punishable U/S 21(b) of the NDPS Act. Let he be now heard on the quantum of sentence.
Announced in the open
court on 28.09.2011 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. : 07A/10 State Vs Hafizullah
FIR No. : 15/10
PS : Saket