Delhi District Court
State vs Thomas Karketta on 5 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 Thomas Karketta
S/o Late Sh. M. Karketta
R/o Village Mechpara,
Post & PS Kalachinu
District Jalpaiguri,
West Bengal
SC No. : 51A/09
FIR No. : 333/09
U/S : 20 NDPS Act
PS : H. N. Din
ORDER ON SENTENCE
After having convicted the accused for the offence
U/S 20(b)(ii)(C) of the NDPS Act for possessing 61.49 kg of
ganja, vide my judgement dated 05.09.2011, I have heard the
submissions made by Sh. R.K. Gurjar, Ld. Additional PP for
the State and Sh. G.S. Sharma, Ld. Counsel representing the
convict as well as the convict himself on the point of
sentence to be awarded to the convict.
2. The offence punishable U/S 20(b)(ii)(C) which has
been proved against the convict carries a minimum term of
rigorous imprisonment for a period of 10 years extending up
SC No. : 51A/09 State Vs Thomas Kerketta
FIR No. : 333/09
PS: H. N. Din
2
to 20 years and also a fine of not less than Rs. 1 Lac and
extending up to Rs. 2 Lacs.
3. It has been submitted on behalf of the State that
the maximum term of imprisonment and fine should be imposed
upon the convict as the quantity of ganja found to be in
possession of the convict is even three times more of the
commercial quantity of ganja prescribed under the above
said Act and hence he deserves no leniency in the matter of
sentence.
4. On the other hand, it has been submitted on behalf
of the convict that he is aged about 45 years only and is
having the responsibility of his wife, one son aged about
15 years and one daughter aged about 19 years. It is also
submitted that though the convict was the sole bread earner
of his family, but after his detention in this case his
wife had also started working as a labourer in a tea garden
in Jalpaiguri, West Bengal to meet out the expenses of
education of both the children and also of running the
household affairs. The son of the convict is stated to be
a student of 12th Standard and his daughter is also stated
to be pursuing the graduation degree. It is further stated
that even the wife of the convict had started remaining
unwell due to the hard labour work which she had been
forced to take because of the compelling circumstances and
SC No. : 51A/09 State Vs Thomas Kerketta
FIR No. : 333/09
PS: H. N. Din
3
to look after her children. Hence, a lenient view has been
requested on behalf of the convict in awarding sentence to
him and it has also been stated that he is not having any
other involvement in any other criminal case of any kind.
5. I have thoughtfully considered the above
submissions being advanced on behalf of the State as well
as the convict. The family circumstances of the convict
brought on record require this court to take a lenient view
in the matter of sentence and no previous criminal record
of the convict is also being alleged on behalf of the
State. Hence, keeping in view the above submissions and
the totality of the facts and circumstances, I sentence the
convict to rigorous imprisonment for a period of 10 years
and also to pay a fine of Rs. 1,00,000/- (Rupees One Lac).
In case of non payment of the above fine, he shall further
undergo simple imprisonment for a period of 6 months. The
convict is also being extended the benefit of Section 428
Cr.P.C. for the period of imprisonment already undergone by
him. Fine has not been paid by the convict. Let him
undergo the above sentence as per law.
6. Let a copy of the judgement and this order on
sentence be supplied to the convict free of costs. The
case property be confiscated and disposed of as per law,
subject to the outcome of the appeal to be filed against
SC No. : 51A/09 State Vs Thomas Kerketta
FIR No. : 333/09
PS: H. N. Din
4
this judgement and order on sentence, if any. File be
consigned to record room.
Announced in the open
court on 08.09.2011 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. : 51A/09 State Vs Thomas Kerketta
FIR No. : 333/09
PS: H. N. Din
5
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus Thomas Karketta
S/o Late Sh. M. Karketta
R/o Village Mechpara,
Post & PS Kalachinu
District Jalpaiguri,
West Bengal
SC No. : 51A/09
FIR No. : 333/09
U/S : 20 NDPS Act
PS : H. N. Din
Date of institution : 29.10.2009
Date of reserving judgment : 05.09.2011
Date of pronouncement : 05.09.2011
J U D G M E N T
The accused has been sent to face trial by SHO PS H. N. Din on allegations that on 06.08.2009 at about 05.50 pm, at place near IGL Pump, near ISBT Sarai Kale Khan, Ring Road, New Delhi, within the jurisdiction of PS H N Din, he was apprehended when he was found to be in possession of 61.49 kg of ganja, in contravention of the provisions of Section 8(c) of the NDPS Act, which is an offence punishable U/S 20(b)(ii)(C) of the above said Act.
SC No. : 51A/09 State Vs Thomas Kerketta
FIR No. : 333/09
PS: H. N. Din
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2. The prosecution story, in brief, is that on the above said date PW-1 HC Som Pal Singh, PW-3 Ct. Gurvinder Singh, PW-4 SI Shiv Raj Bisht and PW-6 Ct. Prakash of the special staff of South East District were on petrolling duty and were present at the Maharani Bagh Bus Stop, Ring Road, New Delhi at about 5:35 PM when a secret informer had informed SI/ PW-4 that one person is sitting near the ISBT Sarai Kale Khan, near IGL Pump and he is having illegal Ganja in bags and is waiting for someone and he can be apprehended with Ganja if a raid is conducted immediately. The above information was communicated by PW-4/SI to the ACP Operations Cell, who had directed the SI/PW-4 to take the necessary action in the matter.
3. It is alleged in the chargesheet that the SI /PW4 had disclosed the above information to the other police officials and had also requested 4 passersby to join them for a raid, but none had agreed and all had left after disclosing their reasonable excuses and without disclosing their identities and particulars. NO coercive action could be taken against any of them due to the paucity of time and then the IO/ PW-4 had constituted a raiding team consisting of all the above police officials and had reached the spot of information at about 5:50 PM and had found one person sitting on two red colour bags at the spot and he also holding the strips of two other bags of blue colour in his SC No. : 51A/09 State Vs Thomas Kerketta FIR No. : 333/09 PS: H. N. Din 7 hands. The above person was apprehended by the police party and his identity was disclosed to be the accused Thomas Karketta facing trial herein, a resident of District Jalpaiguri, West Bengal.
4. It is also alleged in the charge sheet that the accused was asked about the contents of the above said bags and on which the accused became nervous and could not give any satisfactory reply. The IO/SI/PW4 had then given a notice U/s 50 of the NDPS Act. Ex. PW1/A (Carbon copy is also Ex. PW3/A) to the accused apprising him about the above secret information and of his legal right to be searched in the presence of a Magistrate or a Gazetted officer, but the accused had refused for the same on the ground that the above four bags containing Ganja have already been recovered from him and he is not possessing any further contraband substance. The reply/refusal of the accused in this regard was taken down in his own hand writing vide Ex. PW1/B, on the carbon copy of the said notice Ex. PW3/A. The accused was also offered the search of the members of the raiding team but he had refused for the same.
5. It is also alleged in the chargesheet that thereafter, the IO/PW4 had got his search conducted through PW1 HC Som Pal Singh vide memo Ex. PW1/H in which nothing incriminating was recovered and thereafter, the search of SC No. : 51A/09 State Vs Thomas Kerketta FIR No. : 333/09 PS: H. N. Din 8 the above four bags found in possession of the accused was conducted by the IO/PW4 one by one and the same were found to contain light green colour polythene packets, which were having plastic tapes affixed thereon and on opening the above polythene packets the same were found to be containing Ganja, which was wrapped in wet newspapers. The above four bags were given serial No. 1 to 4 and PW6 Ct. Prakash was sent to bring the investigation material and the weight of the above Ganja recovered from the above four bags was done by the IO/PW4 and it was found to be 16.35 kg, 15.35 kg, 15.39 kg and 14.4 kg, i.e. 61.49 kg in total. The IO/PW4 had then taken out 1 Kg of Ganja as samples randomly from each of the above four bags and the same were kept in four separate polythene bags and were given serial No. S1 to S4 and the remaining ganja of the above four bags was re- packed in the same manner and separate cloth pullandas of the samples were prepared and sealed with the seals of SSB. The bags containing the remaining ganja were also put in separate plastic kattas and the same were also sealed with the above seals and the pullandas of the remaining case property were given the serial numbers 1 to 4. However, nothing incriminating was recovered in the search of the accused conducted by the IO/PW4 vide memo Ex. PW1/G. Form FSL was also prepared at the spot and the above said seal was affixed thereon and all the pullandas of the samples and remaining case property, along with the FSL form, were SC No. : 51A/09 State Vs Thomas Kerketta FIR No. : 333/09 PS: H. N. Din 9 seized vide seizure memo Ex. PW1/C. The seal after use was given to PW1.
6. It is further alleged in the chargesheet that since by possessing the above quantity of ganja the accused had committed an offence punishable U/S 20 of the NDPS Act, the IO/PW4 had prepared a rukka and had sent the same to PS H.N. Din through PW3 Ct. Gurvinder Singh and had also entrusted the above sealed pullandas, FSL form and a copy of the seizure memo to him for handing over the same to the SHO. It was also requested in the above rukka that as per the directions of the ACP, Operations Cell, the further investigation of the case may be assigned to ASI Mahesh Kumar. On the basis of the above rukka, the FIR Ex. PW2/A of this case was registered. The above sealed pullandas of the samples and remaining case property, alongwith the FSL Form and the copy of the seizure memo, were handed over by PW-3 to the SHO/Insp. Suresh Kaushik and the SHO/PW-3 had affixed his seals of SK on all the pullandas, FSL form, and after writing down the FIR number of the case on the pullandas and the documents, the same were deposited by him in the police malkhana.
7. It is also a part of the chargesheet that subsequently PW5/ASI Mahesh, who was also of the Special Staff of District South East, was handed over a copy of the SC No. : 51A/09 State Vs Thomas Kerketta FIR No. : 333/09 PS: H. N. Din 10 FIR and the original rukka by PW3 and they had reached at the spot and he was also handed over the relevant documents of this case as well as the custody of the accused by the first IO at the spot. He had prepared the site plan Ex. PW5/A at the spot,arrested the accused vide memo Ex. PW1/D, conducted his personal search vide memo Ex. PW1/E, in which the above original notice U/S 50 of the NDPS Act, some currency amount and other articles were recovered and also recorded his disclosure statement Ex. PW1/F, wherein the accused had allegedly disclosed that the above contraband substance was brought by him from Bhuvneshwar, Orrisa and was to be handed over to one Jaidul, who is resident of Uttam Nagar, New Delhi. The second IO/PW5 had also subsequently sent the above four sample pullandas of this case to FSL for testing and had subsequently prepared and filed the charge sheet in this court after completion of the other formalities of investigation and pending the receipt of the FSL report.
8. Chargesheet in this case was filed before this court on 29.10.2009 and cognizance thereof was taken. A prima facie case for the offence U/S 20(b)(ii)(C) of the NDPS Act was found to be made out against the accused and a charge for the said offence was also framed against him on 06.01.2010.
SC No. : 51A/09 State Vs Thomas Kerketta
FIR No. : 333/09
PS: H. N. Din
11
9. The prosecution in support of its case has examined total 10 witnesses on record (it is stated herein that two witnesses namely Inspt. Suresh Kaushik and Ct. Gurvinder Singh have both been given the same serial number as PW3 inadvertently) and their names and the purpose of examination etc. is being stated herein below :-
(i) PW1 HC Som Pal Singh, PW3 Ct. Gurvinder Singh, PW6 Ct. Prakash and the IO/PW4 SI Shiv Raj Bisht are all the members of the raiding police team which had apprehended the accused with the above contraband substance and on the basis of the above secret information. They all have broadly deposed on the above lines of the prosecution story and have proved on record various documents prepared at the spot. PW1 & PW3 have also participated in the further proceedings conducted at the spot by the second IO/PW5 SI Mahesh Singh.
(ii) PW2 HC Bhambu Ram is the duty officer of this case and he has proved on record a copy of FIR recorded by him as Ex.PW2/A, PW3 Inspt. Suresh Kaushik is the SHO of PS H N Din at the relevant time and he has deposed about the deposit of the above pullandas and documents in the police Malkhana.
(iii) PW5 SI Mahesh Singh is the second IO of this case
SC No. : 51A/09 State Vs Thomas Kerketta
FIR No. : 333/09
PS: H. N. Din
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and he has also deposed on the above lines of the
prosecution story regarding the investigation conducted by him. The two FSL reports regarding the chemical and biological examination of the samples of this case were also tendered on record during his statement as Ex. PW5/A & PW5/B respectively as these are per-se admissible in evidence U/S 293 Cr.P.C. PW7 Sh. Rajeshwar Juneja was the ACP Operations Cell at that time and he had seen and endorsed the information U/S 57 of the NDPS Act Ex. PW7/A, which was sent to him and was entered in the dak register vide entry No. 198 dated 07.08.2009, a copy of which has been proved on record as Ex. PW7/B.
(iv) PW8 HC Dheeraj is the MHC(M) who has proved on record the relevant entry No. 328 of his register No. 19 regarding the deposit of the case property and the movement of the sample pullandas of this case as Ex. PW8/C. He has also deposed about the sending of the sample pullandas to FSL on 25.09.09 through Ct. Sanjeev Kumar vide RC No. 59/21/09 and the handing over of the acknowledgment receipt of the same to him by the above constable and has also proved on record a copy of the above RC and acknowledgment as EX. PW8/A & Ex. PW8/B respectively. PW9 Ct. Sanjeev Kumar is the person who had taken the above sample pullandas to FSL vide RC Ex. PW8/A and had brought the acknowledgment receipt Ex. PW8/B. Both PW8 & PW9 have SC No. : 51A/09 State Vs Thomas Kerketta FIR No. : 333/09 PS: H. N. Din 13 specifically stated that the case property and the sample pullandas were not tampered with while the same were in their custody.
10. All the incriminating evidence brought by the prosecution on record was put to the accused in his statement U/S 313 Cr.P.C. and the same was denied by the accused to be incorrect. The accused has claimed himself to be innocent and to have been falsely implicated in this case after having been picked up from the New Delhi railway station. He has also claimed that the bags in question did not belong to him and the same belonged to some other person who had ran away from the railway station and the same were planted by the police on him. However, no defence evidence has been led by the accused on record.
11. I have heard the arguments advanced by Sh. Wasi Ur Rehman, Ld. Addl. PP for the State and Sh. G.S. Sharma, Ld. Defence Counsel for the accused and have also gone through the evidence led on record.
12. As far as the requirement of serving a notice U/S 50 of the NDPS Act to the accused is concerned, since the recovery of the contraband substance in this case was effected from the bags found in possession of the accused and not from his ' p erson ' , the Ld. Defence Counsel agrees SC No. : 51A/09 State Vs Thomas Kerketta FIR No. : 333/09 PS: H. N. Din 14 that the above notice was not legally required to be served upon or given to the accused in view of the prepositions of law as laid down in cases Ajmer Singh Vs State of Haryana - 2010 (2) SCR 785 (Crl. Appeal No. 436/09), State of H.P. Vs. Pawan Kumar - 2 005 (4) SCC 350 and Madan Lal Vs State of H.P.-2003 Crl.L.J 3868.
13. The first contention of Ld. Defence Counsel is that no independent witness or public person has been joined by the police officials at any stage of the investigation and hence in the absence of the same the evidence led on record cannot be believed and made basis of the conviction of the accused as the prosecution has examined only the police witnesses on record. However, in this regard, it is observed that it has been deposed on record by all the material witnesses of recovery that after receiving of the secret information the IO/PW4 SI Shiv Raj Singh Bisht had requested some passersby to join the investigation, but none had agreed to become a witness. It is also in evidence that he could not take any action against them due to the paucity of time.
14. It is a fact of common knowledge that the public witnesses are always scared to become a witness in a criminal case and it is very hard to find public witnesses these days. Reference in this regard can also be made to a SC No. : 51A/09 State Vs Thomas Kerketta FIR No. : 333/09 PS: H. N. Din 15 judgment of our own High Court in case Union of India Vs Victor Namdi Okpo 2010 (4) JCC (Narcotics) 188 wherein their Lordships had held that the non joining of public witnesses by the prosecution is not fatal. Further, in the case of Ajmer Singh Vs. State of Haryana-(2010) 3 Supreme Court Cases 746 also it was held by the Hon ' b le Supreme Court that though normally it is expected that there should be independent evidence to support the case of the prosecution, but it is not an inviolable rule and the obligation to take public witnesses is not absolute. It was further held that if after making reasonable efforts the police officer is not able to associate any public witness to the raid or arrest of the culprit, then such arrest or recovery would not necessarily be vitiated and in the above said case their Lordships of the Apex Court had upheld the conviction and sentence of an accused under the NDPS Act merely on the testimony of the police witnesses. In view of the prepositions of law as laid down in the above said cases the judgement in case Mohd. Rafiq Vs. State of Delhi 2000 (1) CCC HC 415 being replied upon by Ld. Defence Counsel is not of any help to the case of the accused. Hence, the depositions of the police witnesses only cannot be thrown away and disbelieved for merely the non joining of the public witnesses.
15. The next argument of Ld. Defence Counsel is that SC No. : 51A/09 State Vs Thomas Kerketta FIR No. : 333/09 PS: H. N. Din 16 there is a delay of about 1 ½ months in sending of the sample pullandas of this case to the FSL and because of the above long delay the possibility of tampering with the sample pullandas cannot be ruled. It has also been argued that there is no document on record to show that form FSL was also deposited in the malkhana, alongwith the sample pullandas, or that the same was sent to the FSL with the said pullandas because neither the entry of Register No. 19 Ex. PW8/C nor the road certificate Ex. PW8/A proved on record specifically contain a mention of this fact and hence the link evidence in this case is missing and the accused is bound to be benefited therefrom and is entitled to be acquitted giving benefit of doubt.
16. As far as the question of delay in sending of the sample pullandas to FSL is concerned, the court can take notice of the fact that the police and FSL authorities are over burdened with the quantum of work which they have to cope-up in relation to the examination of exhibits of various criminal cases. It is also a fact of common knowledge that an investigating officer has also to perform some formalities of taking the permission and priority letter etc. from his senior officers before any such exhibits are sent to the FSL for testing. The prosecution case cannot be simply disbelieved and discarded merely on the ground of such delay unless there is some satisfactory SC No. : 51A/09 State Vs Thomas Kerketta FIR No. : 333/09 PS: H. N. Din 17 material on record to suggest any such tampering with the pullandas of the samples or case property.
17. In case of Ramesh Kumar Rajput @ Khan Vs. The State of NCT of Delhi-MANU/DE/0786/2008 there was a delay of 13 days in sending the sample pullandas to the CFSL, but the same was not considered to be fatal keeping in view the fact that there was nothing on record to suggest or to infer from that the sample pullandas were tampered in the police malkhana. In a recent case of Bilal Ahmad Vs. State-2011 III AD (Crl.) (DHC) 293 also even a delay of 59 days in sending of the samples was considered to be not fatal in the absence of any such evidence or inference of tampering with the sample pullanda on the basis of the record. In the instant case also it has come in the statements of PW1 HC Som Pal Singh, PW3 Ct. Gurvinder Singh, PW4 IO/SI Shiv Raj Singh Bisht and PW6 Ct. Prakash that the pullandas of the samples as well as of the remaining case property were sealed by the IO/PW4 at the spot itself with the seals of SSB and the same were taken for deposit in the malkhana by PW3 Ct. Gurvinder Singh. It has also been deposed by PW3 Ct. Gurvinder Singh as well as SHO/Insp. Suresh Kaushik (also numbered as PW3) that the same were entrusted by Ct. Gurvinder to Insp. Suresh Kaushik and he had affixed his seals of SK on all the pullandas and had deposited the same in the malkhana. The SC No. : 51A/09 State Vs Thomas Kerketta FIR No. : 333/09 PS: H. N. Din 18 depositions of the SHO/Insp. Suresh Kaushik with regard to the deposit of the above sealed pullandas in the malkhana are also duly corroborated by the depositions of PW8 HC Dheeraj, who was the MHC(M) of the malkhana at that time and it has also been stated by him that the pullandas of the case property and samples were not tampered with while the same were in his custody.
18. The prosecution has also examined on record the concerned Ct. Sanjeev Kumar who had taken the sample pullandas to the FSL vide RC No. 59/21 Ex. PW8/A as PW9 and the acknowledgment receipt of deposit of the said pullandas in the FSL has also been duly proved on record as Ex. PW8/B. Except some suggestions given to PW8 & PW9 regarding the tampering of the above pullandas while the same were in their custody, which were duly denied by the above witnesses, there is nothing on record to suggest or infer any such tampering with the above pullandas. Even the FSL report of the Chemistry Division Ex. PW5/A, which is per-se admissible in evidence U/S 293 Cr.P.C., all the four sample pullandas were found bearing the above said seals of SSB and SK and the same were in intact condition and had also tallied with the specimen seals as per the forwarding letter (FSL form). Hence, there is nothing on record to suggest or infer that the above sample pullandas were tampered with at any stage till its examination in the SC No. : 51A/09 State Vs Thomas Kerketta FIR No. : 333/09 PS: H. N. Din 19 FSL and hence the above delay in sending the sample pullandas to the FSL is found to be immaterial. The judgements in cases of Ranjodh Singh Vs. State 2007 (4) JCC 188 and Jarnail Singh Vs. State of Punjab 2008 (4) JCC 204 being replied upon by Ld. Defence Counsel on the point of delay also cannot be given much weight in view of the above prepositions of law laid down in cases of Ramesh Kumar Rajput @ Khan and Bilal Ahmed-Supra.
19. As far as the argument of Ld. Defence Counsel for not depositing the FSL form with the pullandas or non taking thereof to the FSL is concerned, in this regard also it is observed that all the above material witnesses of recovery have specifically deposed that form FSL was filled up by the IO at the spot and the same was also taken by PW3 Ct. Gurvinder Singh with the above said pullandas. It has further come on record in the statement of the SHO/Insp. Suresh Kaushik also that it was entrusted to him by Ct. Gurvinder and was deposited by him in the malkhana with the pullandas. His depositions in this regard are also corroborated by the statement of the MHC(M)/PW8 HC Dheeraj. Even the above FSL report Ex. PW5/A makes a specific mention of the FSL form (forwarding letter) having been received with the sample pullandas. Hence, there is sufficient evidence on record to show that the FSL form was deposited in the malkhana with the above pullandas and it SC No. : 51A/09 State Vs Thomas Kerketta FIR No. : 333/09 PS: H. N. Din 20 was also sent to the FSL with the said pullandas and merely because this fact is not specifically mentioned in the entry Ex. PW8/C of the Register No. 19, no adverse inference in this regard can be drawn against the prosecution. Hence, the above contention of Ld. Defence Counsel is not found to be acceptable and no such inference of tampering with the sample pullanda can be drawn in the present case. Similar prepositions of law were also laid down by their Lordships in the case of Bilal Ahmed-Supra and in view of the prepositions of law as laid down in the said case the judgements in cases Amarjeet Singh & Anr. Vs. State (Delhi Admn.) 1995 JCC 91, Abdul Gaffar Vs. State of Delhi 1996 JCC 497 and Ramesh Prakash Vs. State of Delhi 1999 (2) JCC 538 being referred by Ld. Defence Counsel cannot be relied upon.
20. The next argument of Ld. Defence Counsel is that though according to the prosecution story the accused Thomas Karketta had disclosed the name of one Jaidul resident of Uttam Nagar as the person to whom the above ganja was to be supplied by him, but none of the above police witnesses of recovery has made any depositions in this regard and hence the prosecution story as such is not reliable. This argument of Ld. Defence Counsel is without any merits because the possession of a contraband substance itself is an offence under the NDPS Act and the charge SC No. : 51A/09 State Vs Thomas Kerketta FIR No. : 333/09 PS: H. N. Din 21 against the accused has been framed with regard to his being found in possession of the above quantity of ganja and even if the prosecution witnesses are silent with regard to the above Jaidul or the subsequent recovery of ganja made from him, which is the subject matter of a separate trial, the same is not found to be fatal for the prosecution case.
21. Besides the above arguments, the Ld. Defence Counsel has pointed out various contradictions in the prosecution story and in the statements of prosecution witnesses to the effect as to what was the mode of conveyance used by the recovery witnesses for reaching at the spot of information, i.e. from the Maharani Bagh bus stop to the spot of incidence, i.e. near the above CNG Station near the ISBT Kale Khan, the distance between the Maharani Bagh bus stop and the above place of apprehension of the accused, whether the above police witnesses were in civil dresses or in uniform, to whom the seal of SSB was given after use, the size of the weighing scale used by the IO etc., but, however, it is observed that all the above contradictions being pointed out by the Ld. Defence Counsel are not material contractions and do not go to the root of the case because the above witnesses cannot be expected to give a parrot like version of the incident at subsequent times when they are called upon to depose about the SC No. : 51A/09 State Vs Thomas Kerketta FIR No. : 333/09 PS: H. N. Din 22 incident. It is so because a witness deposes in a court either on the basis of his own perception or on the basis of his memory of recollection of the facts and in this case all of them were deposing about the incident on the basis of recollection of the facts based on their own memories which are bound to be different. Such like contradictions are natural to come in the version of the witnesses of any incident and similar depositions can be made by the witnesses about an incident only when they have been tutored or prompted to make some particular depositions. Rather, the above contradictions in their testimonies suggest that they are natural witnesses of the incident and are not tutored one.
22. PW1 HC Som Pal Singh, PW3 Ct. Gurvinder Singh, PW4 IO/SI Shiv Raj Singh Bisht and PW6 Ct. Prakash have all corroborated each other on the material particulars of the case with regard to the recovery of the above contraband substance, i.e. ganja, from the accused which was found contained in four different bags. It has been deposed by all of them that at the time of his apprehension the accused was sitting on two bags and was holding the stripes of one other bag in each of his hands. They also corroborate each other with regard to quantity of ganja recovered from each of the above four bags and also with regard to the process of drawing of samples out of the SC No. : 51A/09 State Vs Thomas Kerketta FIR No. : 333/09 PS: H. N. Din 23 ganja contained in the above four bags and sealing and seizure thereof.
23. 61.49 kg of ganja is a very huge quantity of the above contraband substance because under the Table notified under the above said Act only a quantity of 20 kg has been prescribed to be a commercial quantity. Keeping in view the weight of the quantity of ganja found in possession of the accused there is no possibility of the same being planted by the above police officials on the accused because it is not the case of the accused that he was having any enemical relations with any of the police officials examined on record or in particular with any member of the raiding police team. The accused is a resident of Jalpaiguri, West Bengal and during the entire trial of the case no just or reasonable cause has been brought on record on behalf of the accused to justify the alleged plea of false implication of the accused being raised on his behalf. Further, though during the course of cross examination of and giving suggestions to IO/PW4 Sh. Shiv Raj Singh Bisht as well as during the course of recording of his statement U/S 313 Cr.P.C., a defence of the accused has been brought on record that he was apprehended from New Delhi railway station and was falsely implicated in this case and the above bags were belonging to some other person who had run away from the railway SC No. : 51A/09 State Vs Thomas Kerketta FIR No. : 333/09 PS: H. N. Din 24 station, but the above defence of the accused is very vague and also appears to be inconsistent and an afterthought. It is so because no suggestion to this effect was given either to PW1 HC Som Pal or to PW3 Ct. Gurvinder Singh who both were examined on record prior to the examination of the IO/PW4 SI S.S. Bisht and even these suggestion were not given to PW6 Ct. Prakash who is also a witness of recovery of the above quantity of ganja form the above accused.
24. Though it has also been argued that there are also some contradictions in the statements of the above witnesses as to the place where the writing work was conducted at the spot, but even on this aspect there are virtually found to be no contradictions in their testimonies. Though it has also been argued by Ld. Defence Counsel that there are contradictions in the prosecution story with regard to the exact place of apprehension of the accused as shown in the site plan and as stated in the depositions made by the above recovery witnesses, but it is found on perusal of the testimonies of the said witnesses that there are no contradictions on record on this aspect. Even otherwise, the alleged contradictions being pointed out by Ld. Defence Counsel are minor in nature and do not go to the root of the prosecution story or affect the credibility thereof.
SC No. : 51A/09 State Vs Thomas Kerketta
FIR No. : 333/09
PS: H. N. Din
25
25. Therefore, keeping in view the above discussion, it is held that the prosecution has successfully brought home the guilt of the accused and proved its charge for the offence punishable U/S 20(b)(ii)(C) of the NDPS Act. The accused is accordingly held guilty and convicted for the above said offence. Let he be now heard on the quantum of sentence.
Announced in the open
court on 05.08.2011 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. : 51A/09 State Vs Thomas Kerketta
FIR No. : 333/09
PS: H. N. Din