Delhi District Court
State vs . Jyoti Sharma @ Jyoti & Ors. Sc No. 23/10 on 17 July, 2015
State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10
IN THE COURT OF SH. DEEPAK GARG : SPECIAL JUDGE NDPS
PATIALA HOUSE COURTS: NEW DELHI
SC No. 23/10
ID No. 02403R0317742010
FIR No. 41/2010
PS Special Cell
u/s 21/25/29 of NDPS Act and 14 Foreigner Act
State Vs. 1. Jyoti Sharma @ Jyoti
s/o Late Sh. Dineshwar Ram
r/o Village Mokhe
PO and PS and Tehsil R.S. Pora Jammu,
Jammu and Kashmir
2. Ramzan @ Johney
s/o Mohd. Ismail
r/o Village Lakho PS Kanna
Tehsil & Distt. Lahore, Pakistan
3. Naresh Sharma
s/o Sh. Yashpal Sharma
r/o Village and PO Seri Panditan,
Tehsil & Distt. Jammu
PS Garota, Jammu and Kashmir
Date of Institution : 24/11/2010
Judgment reserved on : 06.07.2015
Date of pronouncement : 17.07.2015
FIR No. 41/10 Page 1 of 41
State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused persons under section 21, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'NDPS Act') and 14 Foreigners Act.
2. Briefly stated the allegations that can be culled out from the contents of the chargesheet and the documents filed with the same are as follows:
(a) Two months prior to 29/8/2010 there was a secret information with Inspector Manoj Dixit and Inspector Ramesh Lamba, Special Cell, Lodhi Colony that an international racket of drug peddlers and fake Indian currency notes (FICN) is operating in Punjab, J & K and other parts of northern India and the members of the racket are indulging in smuggling, narcotic drugs and FICN into India from Pakistan via Indo Pak border at Punjab and the members were also trying to set up their base in Delhi.
The information was shared with senior officers and a team led by Inspector Ramesh Lamba and Inspector Manoj Dixit was constituted under supervision of Sh. Bhisham Singh, ACP Special Cell for developing of the aforesaid information. Sources were deployed in and around Delhi and during this process it was revealed that one of the members of this international racket namely Jyoti hailing from Jammu was concealing himself somewhere in Delhi and he was in contact with FIR No. 41/10 Page 2 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 his counterparts in Pakistan for smuggling and circulation of drugs and FICN and from Pakistan to India.
(b) On 29/8/2010 at about 3:30 p.m. Inspector Ramesh Lamba received a specific secret information telephonically at his office of Special Cell Lodhi Colony that one Jyoti has received a huge consignment of drugs and FICN from a Pak national Johny at IndoPak Border in Punjab who has filtered into India through border and it was also informed that both of them were coming to Delhi in a silver colour Indica bearing registration no. JK02 AN 0465 in order to deliver the said consignment to one of their contact person in Delhi and they all would meet near a park near Humayun Tomb in Nizamuddin area at about 5:00 p.m.
(c) Inspector Ramesh Lamba discussed the information with Sh. Bhisham Singh, ACP Special Cell who directed him to conduct raid. DD entry no. 10 was also lodged in this regard and as per the directions of the ACP, a raiding team comprising of Inspector Ramseh Lamba, Inspector Manoj Dixit, SI Rahul Sawhney, SI Neeraj Kumar, SI Uma Shankar Tiwari, SI Ravinder Kumar, ASI Kamal Kishore, ASI Bijender Singh, ASI Santosh Kumar, HC Ashok Kumar, HC Bacchu Singh, HC Vinod Kumar, HC Satish Kumar, HC Shishir Rai, HC Inderjeet Singh, HC Surender Kumar, Ct. Manmohan Singh, Ct. Jitender Singh left for FIR No. 41/10 Page 3 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 spot duly equipped with arms and ammunition and IO kit and field testing kit at about 4:15 PM in four private vehicles and 2 two wheeler scooters vide DD no. 12 and reached the designated spot at about 4:45 PM where secret informer met them. Before leaving, IO briefed the raiding party about the secret information.
(d) On the way, the IO requested 78 passersby under Obroi flyover and 56 public persons at the spot i.e. near park near Humayun Tomb, Nizamuddin to join the raiding team but none agreed to do so. Vehicles were got parked on service road and thereafter, the members of the raiding team were deployed at strategic points and started waiting.
(e) At about 5:05 p.m. the abovesaid silver colour Indica car bearing registration no. JK 02AN 0465 came at the spot from Nizamuddin round about side and stopped at a distance of about 20 meters from the raiding party. The driver of the car kept on sitting on the driver's seat whereas two persons who were seen sitting on the rear seat came out of the car, holding black colour polythene bags in their left hands and came in front of the car and stood at some distance from the car. Out of them, one person who was wearing a blue jeans and a yellow colour stripe shirt and he was identified by the secret informer as Jyoti Sharma. Both of them started waiting for someone and kept on talking to each other. After waiting for 15 minutes when no one came to meet them both of them FIR No. 41/10 Page 4 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 started proceeding back towards the car. At that point of time, both were apprehended by raiding team along with driver of the Indica car.
(f) IO Inspector Ramesh Lamba then introduced himself and the members of the raiding team to the accused persons and on enquiry they revealed their names as Jyoti Sharma, Ramzan and Naresh Kumar Sharma (Driver). They were then informed about the secret information received by the raiding team and they were also apprised about their right to be searched before a Gazetted Officer or a Magistrate. Notices u/s 50 NDPS Act were also issued to the accused persons and they were explained its contents. All of them refused to call a Gazetted Officer or a Magistrate and informed the IO that their search may be taken by the police officials themselves. At that time also Inspector Ramesh Lamba requested 45 passersby to join the proceedings but none agreed.
(g) Thereafter, Inspector Ramesh Lamba conducted the search of black colour polythene bag which accused Jyoti was holding in his left hand. It was found containing two packets wrapped in yellow colour tape. On removing the tape from both the packets, each packet was found to contain one cloth pullanda each bearing some unreadable stamps and 333 was written on both the cloth pullandas and both the pullandas were having holes on both sides. On opening the said pullandas, they were found to contain white transparent polythene packets having off FIR No. 41/10 Page 5 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 white /cream colour crystal/granules/powder. The contents of both the packets were checked with the help of field testing kit and the same gave positive for heroin with traces of cocaine. Both the packets were given mark D1 and D2. The recovered substances were also weighed and weight of packet D1 came out to be 1022 grams with polythene and weight of packet D2 came out to be 1020 grams.
(h) Two samples of 10 grams each were taken out from the packets D1 and D2 and were kept in different small transparent polythenes and the said polythenes were then further kept in small transparent plastic containers separately and then converted into pullandas with the help of white colour tape and given mark S1, S2, S3 and S4. The remaining heroin weighing 1002 and 1000 grams along with the plastic polythenes were kept back in the cloth pullanda out of which they were recovered and the same were kept in big separate transparent plastic containers. The yellow colour tape with which they were found wrapped and the black colour polythene out of which they were recovered were also kept in the same containers and the containers were converted into cloth pullandas with the help of white tape and given mark D1 and D2. All the pullandas were sealed with the seal of RCL. The FSL Form was filled and the impression of the same seal was then affixed on the Form FSL. FIR No. 41/10 Page 6 of 41
State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 (i) Thereafter, Inspector Ramesh Lamba conducted the search of
black colour polythene bag which accused Ramzan @ Johny was holding in his left hand. It was found containing two packets wrapped in transparent polythene with a brown colour tape. On removing the tape from both the packets, each packet was found to contain one cloth pullanda each bearing some rubber stamps of 555 impression of lion and something written in different language was written on both the cloth pullandas and 555 was also written on both the cloth pullandas and both the pullandas were having holes on both sides. On opening the said pullandas, they were found to contain white transparent polythene packets having off white /cream colour crystal/granules/powder. The contents of both the packets were checked with the help of field testing kit and the same gave positive for heroin with traces of cocaine. Both the packets were given mark D3 and D4. The recovered substances were also weighed and weight of packet D3 came out to be 1010 grams with polythene and weight of packet D4 came out to be 994 grams.
(j) Two samples of 10 grams each were taken out from the packets D3 and D4 and were kept in different small transparent polythenes and the said polythenes were then further kept in small transparent plastic containers separately and then converted into separate pullandas with the help of white colour tape and given mark S5, S6, S7 and S8. The FIR No. 41/10 Page 7 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 remaining heroin weighing 990 and 974 grams along with the plastic polythenes were kept back in the cloth pullanda out of which they were recovered and the same were kept in big separate transparent plastic containers. The plastic polythenes wrapped in khaki colour tape with which they were found wrapped and the black colour polythenes out of which they were recovered were also kept in the same containers and the containers were converted into cloth pullandas with the help of white tape and given mark D3 and D4. All the pullandas were sealed with the seal of RCL. The FSL Form was filled and the impression of the same seal was then affixed on the Form FSL.
(k) Thereafter Inspector Ramesh Lamba conducted the search of black colour polythene bag which accused Naresh Kumar Sharma was holding in his left hand on his lap. The polythene bag was found containing one white transparent polythene. On opening the packet, it was found to contain one cloth packet bearing some rubber stamps of 555 impression of lion and something written in different language and 555 was also written on the cloth pullanda and it was having holes on both sides. On opening the said pullanda, it was found containing off white /cream colour crystal/powder in white transparent polythene packet. The contents of the packets was checked with the help of field testing kit and the same gave positive for heroin and was given mark D5. The recovered FIR No. 41/10 Page 8 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 substance was also weighed and weight of packet D5 came out to be 1015 grams with polythene.
(l) Thereafter two samples of 10 grams each were taken out from the packet D5 and were kept in two separate plastic polythenes and the said polythenes were then further kept in two small transparent plastic containers separately and then converted into pullandas with the help of white colour tape and given mark S9 and S10. The remaining heroin weighing 995 grams along with the plastic polythene was kept back in the cloth pullanda out of which it was recovered and the same was kept in a big transparent plastic container. The white transparent plastic polythene in which the cloth pullanda was found and the black colour plastic polythene out of which it was recovered were also kept in the same container and the container was converted into cloth pullanda with the help of white tape and were given mark D5. All the pullandas were sealed with the seal of RCL. The FSL Form was filled and the impression of the same seal was then affixed on the Form FSL and thereafter the seal was handed over to SI Neeraj. Seizure memos were prepared. During investigation the accused Ramzan @ Johny was asked to produce their documents for staying in India but he could not produce any document for his stay in India.
(m) The Rukka was prepared and the same alongwith the seizure
FIR No. 41/10 Page 9 of 41
State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10
memos and sealed property was handed over to HC Satish Kumar, who thereafter went to PS Special Cell and produced the case property before SHO, PS Special Cell and handed over the rukka to Duty Officer for registration of FIR. SHO affixed his seal on all the pullandas and documents and also put the FIR number on the carbon copy of seizure memos, FSL forms and all the pullandas with his signature and deposited the same with MHCM. Further investigation was handed over to SI Virender Tyagi who came to the spot and prepared the site plan, arrested the accused persons and interrogated them. Car was seized.
(n) Both the accused persons were then produced before SHO, Special Cell and their personal search articles were then deposited with the malkhana and statements of witnesses were recorded. Reports u/s 57 NDPS Act pertaining to the seizure and arrest of accused persons were submitted to the senior officials.
(o) Eight toll tax barriers slips were recovered from the recovered car. Notices u/s 91 CrPC were sent to the Manager of Project, Panipat Elevated Coridoor Ltd., Manager of Project, NHAI, Project Director, NHAI and Project Director PIU, Chandigarh regarding verification from their toll barriers of crossing of the car in which accused persons had traveled to Delhi i.e. bearing no.JK02AN 0465.
(p) Thereafter the sample pullandas were sent to FSL, Rohini. After
FIR No. 41/10 Page 10 of 41
State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10
receiving the reports from FSL with respect to the contraband, the present chargesheet was filed.
3. On the basis of material placed on record, charges were framed by the Ld. Predecessor of this court vide order dated 10/01/2011 against all the accused persons for the offences punishable u/s 21 (c), 29 r/w section 21 of the NDPS Act and against accused Ramzan @ Johny u/s 25 of the NDPS Act and 14 of the Foreigners Act. All the accused persons pleaded not guilty to the said charges and claimed trial.
4. The prosecution in order to prove its case has examined 23 witnesses in all.
5. PW4 Inspector Neeraj Kumar, PW5 SI Rahul Sawhney, PW6 Inspector Ramesh Lamba are members of the raiding team which had apprehended the accused persons. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. As per their depositions, the secret information received by PW6 was reduced into writing vide DD no. 10 and the departure of the raiding team from the PS was recorded vide DD no. 12. The DD no. 10 has been exhibited as Ex.PW9/A. The notices issued to the accused persons Jyoti Sharma, Ramzan and Naresh u/s 50 of the NDPS Act have been exhibited as Ex.PW4/A, Ex.PW4/C and Ex.PW4/E and the refusals written by the accused persons have been exhibited as Ex.PW4/B, FIR No. 41/10 Page 11 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 Ex.PW4/D and Ex.PW4/E respectively. The seizure memos prepared with respect to the recovery of the heroin have been exhibited as Ex.PW5/A, Ex.PW5/B and Ex.PW5/C. The tehrir prepared at the spot has been exhibited as Ex.PW6/A.
6. PW1 Inspector Rajendra Singh Sehrawat, has interalia deposed that on 29/8/2010, he was posted as SHO, PS Special Cell and on said day, HC Satish had produced before him, 15 sealed pullandas mark D1 to D5 and S1 to S10, three FSL Forms and three carbon copy of seizure memos. As per the deposition of this witness, he had put the FIR number, his initials and his seal of 'RSS' on all the pullandas and the FSL forms and had then got the said property deposited in the Malkhana by ASI M. Baxla MHC(M) and had lodged DD no. 11A, Ex.PW1/A in this regard. According to this witness on 30/8/2010 at about 5:00 a.m. SI Virender Tyagi produced three accused before him and he cursorily interrogated all the three accused persons.
7. PW2 ASI M. Baxla has deposed that he was posted as MHC(M) at PS Special Cell on 29/8/2010 and this witness has proved the entries in the malkhana register maintained by him with respect to case property, pullandas, etc deposited with him by the investigating official.
8. PW3 ASI Bhagwat Prasad has interalia deposed that he was the duty officer on 29/8/2010 and that on this date he had received the rukka of FIR No. 41/10 Page 12 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 the present case through HC Satish Kumar and had registered the FIR, Ex.PW3/A.
9. PW8 Dr. Madhulika Sharma, Deputy Director, FSL, Rohini has proved the report prepared by her with respect to the analysis conducted by her of the sample mark S1, S3, S5, S7 and S9 sent to FSL during investigation. The said report has been exhibited as Ex. PW8/A and as per the said report, the samples Mark S1, S3, S5, S7 and S9 were found to contain diacetylmorphine, the percentage of diacetylmorphine to be 12.82%, 36.0%, 24.72%, 27.28% and 1.64% respectively.
10.PW9 Ct. Narender Singh, Reader to ACP Special Cell, Lodhi Colony, NDR Delhi has interalia deposed that as per the record maintained by him, DD no. 10 regarding secret information, report u/s 57 NDPS Act regarding seizure of heroin, prepared by Inspector Ramesh Lamba and report u/s 57 NDPS Act regarding arrest of accused persons, prepared by SI Virender Tyagi were received in the office of ACP and that the said reports were put before ACP. The DD, reports and record produced by this witness have been duly exhibited during his testimony as Ex.PW9/A to Ex.PW9/F.
11.PW11 Sh. Sandeep, owner of B49 Mukund Vihar. This witness has deposed that Jyoti Sharma had taken one room on the ground floor of house no B49, Mukund Vihar on rent from him. According to this FIR No. 41/10 Page 13 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 witness about two years back in the month of August in his presence the room occupied by Jyoti Sharma was searched however no contraband was recovered during the said search. The house search memo has been exhibited as Ex.PW11/A.
12.PW12 ASI Mukesh Singh has deposed that on 20/8/2010 he along with PW22 had gone to Jalandhar, Amritsar Toll Tax ltd. for verifying the toll tax receipts issued by NHAI where they met Project Director of NHAI and notice u/s 91 CrPC were given to the concerned persons for verifying the entry and exit of vehicle number JK02AN0465. The staff of Toll Plaza I and II had provided details and supplied two sets of photocopies to the IO which were seized by the IO. Seizure memo has been exhibited as Ex.PW12/A.
13.PW13 HC Inderjeet has interalia deposed that on 09/09/2010 he had taken five pullandas along with FSL forms from MHC(M) vide RC no. 130/21 and had got the same deposited with FSL, Rohini, obtained a receipt thereof and handed over the same to MHC(M). The receipts has been exhibited as Ex.PW13/A.
14.PW14 Sh. Syed Jaweed Ahmed has produced before the Court records which reveals that car bearing no. JK02AN0465 had passed through the Toll Amritsar to Jalandhar Tollways at Beas on 28/8/2010 at 12:06 in the afternoon and had paid Rs.17/ towards toll payment vide receipt no. FIR No. 41/10 Page 14 of 41
State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 227076 and the said car had further crossed the toll Amritsar to Jalandhar at Nijjapur on 28/8/2010 at 10:57 a.m. and had paid Rs.17/ towards the toll payment vide receipt no. 251959. This witness has further deposed that as per records one another vehicle bearing last digit as 0465 had passed through the Toll Jalandhar to Amritsar Tollways at Beas on on 28/8/2010 at 12:11 in the afternoon and had paid Rs.17/ towards toll payment vide receipt no. 198412 and the said car had further crossed the toll Jalandhar to Amritsar at Nijjapur on 28/8/2010 at 12:46 a.m. and had paid Rs.17/ towards the toll payment vide receipt no. 206495. The records have been exhibited as Ex.PW14/A to Ex.PW14/D.
15.PW15 Sh. Vivek Sharma, owner of the hotel J.V. Continental has deposed in court that in the intervening night of 27/28 August, 2010 at about 1:30 a.m. two persons namely Jyoti and Naresh Sharma came to his hotel and stayed in room no. 201 and checked out at about 9:30 a.m. on 28/8/2010. This witness has further deposed that entry regarding their stay was made by accused Naresh Kumar in his own handwriting in the entry register at sl. no. 541. The entries have been exhibited as Ex.PW15/A.
16.PW16 ASI Kamal Kishore has deposed that on 30/8/2010 he along with SI Virender Tyagi went to the house of accused Jyoti Sharma i.e. House No. B49, Mukand Vihar, Karaval Nagar, Delhi and searched the ground FIR No. 41/10 Page 15 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 floor of the said house where accused was residing as a tenant but no contraband was recovered. The house search memo has been exhibited as Ex.PW11/A.
17.PW17 Surender Sharma, Manager Operation L & T, Panipat has deposed that in the year 2010 notice u/s 91 CrPC was received in their office vide which they were asked to provide the details of the vehicle which crossed/passed through their toll tax barrier vide slip ID no. 70012 transaction no. 007042155930. On 21/9/2010 Animesh Gaur, Project Manager had sent reply of this notice to IO. Reply has been exhibited as Ex.PW17/A.
18.PW18 Sh. Anil Kumar Dahiya has deposed before the court that on 22/9/2010 he had received a letter from SI Virender Tyagi and in response thereto had furnished the necessary information that vehicle no. JK02AN0465 had crossed Dapper Toll Plaza on 28/8/2010 at 21:30:54. The record has been exhibited as Ex.PW18/A.
19.PW19 Sh. Ashok Kumar is the registered owner of Indica car no. JK02AN0465. He has deposed that the said vehicle used to be run as a taxi and his younger brother PW20 Raj Kumar used to give the said car on hire on various persons. PW20 Raj Kumar has deposed that though his brother PW19 is a registered owner of the aforementioned vehicle, he FIR No. 41/10 Page 16 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 had given the said vehicle on rent to accused Naresh in 2010 for three days on a daily rent of Rs.1,000/ as Naresh had told him that he wants to visit Golden Temple. According to both the witnesses the Indica car bearing no. JK02AN0465 was given on superdari to PW19 Ashok Kumar vide superdarinama Ex.PW19/A.
20.PW21 Sh. A.K. Pureha has deposed that on 29/0/2010 a letter had been received in PIU Ambala from IO, Special Cell Lodhi Colony to provide details of vehicle which had passed/crossed via toll barriers falls in Lodewal and Karnal. They had sent the same letter to General Manager M/S Soma Isolux NH1 Toll Pvt. Ltd. vide PIU letter no. 11006/NHAI/Ambala/2430 dated 22/9/2010 to submit the required information and pursuant to that letter M/S Soma Isolux NH1 Toll Pvt. Ltd had informed that silver colour Indica car had crossed Lodwal Toll Plaza on 28/8/2010 at 2:23:07 p.m. and Karnal Toll plaza on 29/8/2010 at 12:31:04 a.m. vide receipt no. 975728 and 1037401 respectively. The letter and information have been exhibited as Ex.PW21/A and Ex.PW21/B.
21.PW22 SI Virender is the second investigating officer of the present case who has inter alia deposed that on reaching the spot he had met Inspector Ramesh Lamba who had produced before him the accused persons and documents prepared by him. As per this witness he had thereafter FIR No. 41/10 Page 17 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 prepared the site plan Ex.PW5/D1 and had arrested all the accused persons vide arrest memos, Ex.PW5/D, Ex.PW5/E and Ex.PW5/F respectively. 8 Toll slips, car in question and two bags having belongings of accused persons were seized vide memos Ex.PW5/Q, Ex.PW5/P and Ex.PW5/R. Notices u/s 52 NDPS Act have been exhibited as Ex.PW5/M to Ex.PW5/O. Supplementary statement of accused Jyoti Sharma and Naresh Kumar have been exhibited as Ex.PW5/S and Ex.PW5/T respectively. PW22 has further deposed that on 4/9/2010 he along with PW7 ASI Santosh, PW10 HC Surender Kumar, ASI Bijender, HC Ashok and accused persons Naresh and Jyoti Sharma had left for Hotel J.P. Continental, Amritsar where accused persons were stayed and seized photocopy of the hotel register vide Ex.PW15/A. Various notices u/s 91 Cr.PC have been duly exhibited.
22.PW23 Dr. Jiju P.V. Senior Scientific Officer, FSL Rohini has inter alia deposed that on 16.09.2010, he had received the documents marked as Q1 to Q16 and specimen handwriting S1 to S13 of accused Naresh Kumar and after examination, opined that the person who wrote the writings/signatures mark S1 to S5 and S8 to S13 also wrote the writings/signatures mark Q1 to Q3. The report prepared by the said expert in this respect has been exhibited as Ex.PW23/A. FIR No. 41/10 Page 18 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10
23.On the conclusion of the prosecution evidence, all the incriminating evidence was put to the accused persons in their statements u/s 313 Cr.PC which have been denied by them. It is stated by the accused persons that they have been falsely implicated in the present case and no contraband was recovered from them.
24.Accused Jyoti Sharma and Ramzan produced two witnesses in their defence as DW1 and DW2.
25.DW1 Ct. Meena Ram has deposed that on 29/8/2010 he was posted at beat box Sunder Nagar under the jurisdiction of PS Hazrat Nizamuddin. He remained present at the beat box from 9:00 a.m. to 10:00/11:00 p.m. along with Ct. Jaswant. They also patrolled their area in between the circle. During the time they did not come across any proceedings under NDPS Act conducted by any police officials in their circle. They did not receive any information or any PCR call with regard to the apprehension of accused persons and vehicle bearing registration no. JK 02AN 0465 near a park, near Humayun Tomb, Nizamuddin in the evening time, which fall in the jurisdiction of above PS and the same was in his circle where he and the above Constable was on patrolling duty and even they had not come across about any such incident when they had reported back to the PS after completing their patrolling duty in the said area during the said time on the above date. During the abovesaid time, when FIR No. 41/10 Page 19 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 they were on patrolling in the abovesaid area they had not left the said area even for any purpose i.e. of personal purpose or any official work i.e. the information received from PS or PCR call.
26.DW2 Ct. Jaswant Singh has corroborated the version of DW1 in all material aspects.
27.I have heard Sh. R.K. Bhati, Ld. APP for the State, Sh. Vikas Gautam, Ld. Counsel for accused Jyoti and Naresh and Sh. Sumit Sharma, Ld. Counsel for accused Ramzan and I have also perused the written submissions filed by the accused persons.
28.As stated above, as per the case of the prosecution, accused Ramzan @ Johny is a Pakistani national who had infiltrated into India through border with huge consignment of drugs. On 27.08.2010 accused Naresh Kumar Sharma who is a resident of Jammu hired Indica car bearing no. JK 02AN 0465 from Sh. Rajkumar S/o Sh. Prem Chand r/o Jammu and he alongwith his brother in law (Jija) i.e. accused Jyoti Sharma came to Amritsar and stayed for a night in Hotel JV Continental, Amritsar and they both received consignment of drugs from Ramzan @ Johny in Punjab and they all came to Delhi in the said vehicle after crossing the toll at Nijjapur, Beas, Lodwal and Karnal, etc and they came to Delhi in order to deliver the said consignment to one of their contact persons in Delhi and they were apprehended near Humayu Tomb in Nizamuddin FIR No. 41/10 Page 20 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 area at about 05.00 PM on 29.08.2010 and the recovery of contraband in question was effected from them.
29.Sh. Ashok Kumar, registered owner of Indica car no. JK 02 AN 0465 has been examined as PW19 to whom the vehicle in question was released on superdari. His brother namely Sh. Rajkumar, who has been examined as PW20 has proved that he had given the said vehicle on rent to Naresh for three days on a daily rent of Rs.1000/ as he had told him that he wanted to go to Amritsar to visit Golden Temple. He correctly identified accused Naresh in court.
30.Sh. Vivek Sharma PW15 who was running the hotel in the name of JV Continental, 3A, Hotel Lane, Queens Road, Amritsar has proved that Naresh and Jyoti had come to his hotel on 27.08.2010 and stayed in room no.201 and they checked out at about 09.30 AM on 28.08.2010 and the entry of their stay at serial no. 541 in the hotel register has been proved as Ex.PW15/A. This entry was made by Naresh Kumar in his own handwriting and Naresh Kumar has infact admitted the same in his statement u/s 313 Cr.PC although he has given different reasons for making the said entry.
31.PW14 Saeed Jaweed Ahmed, Assistant Engineer, JalandharAmritsar Tollways Ltd. Beas, Amritsar has proved that car bearing no. JK 012AN 0465 had crossed the toll Amritsar to Jalandhar at Nijjapur on 28.08.2010 FIR No. 41/10 Page 21 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 at 10.57 AM and had paid Rs.17/ towards the toll payment vide receipt no. 251959 and further this vehicle had passed through the toll Amritsar to Jalandhar tollways at Beas on 28.08.2010 at 12.06 in the afternoon and had paid Rs.17/ towards toll payment vide receipt no. 227076 and the record has been proved as Ex.PW14/A to Ex.PW14/D. PW21 Sh. A.K. Pureha, PIU 17L Model Town, Ambala has proved that this vehicle had crossed Lodwal toll plaza on 28.08.2010 at 02.23 PM and Karnal Toll plaza on 29.08.2010 at 12.31 AM against receipt no. 975728 and 1037401 respectively and the record has been proved as Ex.PW21/A and Ex.PW21/B. Accused Jyoti Sharma and Naresh Sharma in their statement u/s 313 Cr.PC have admitted that they had crossed these toll plazas while they were travelling in the said car no. JK 02AN 0465 but they had given their own reasons and have stated that coaccused Ramzan @ Johny was not with them and that they did not know him and came to know about him only after they were falsely implicated in this case.
32. The statement of PW19 Shri Ashok Kumar, PW15 Shri Vivek Sharma, PW14 Saeed Jaweed Ahmad and PW21 Shri A K Pureha is reliable and trustworthy and there is nothing in their crossexamination to dent their credibility.
FIR No. 41/10 Page 22 of 41
State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10
33.As far as recovery of contraband from the accused is concerned, the members of the raiding team PW4 Inspector Neeraj Kumar, PW5 SI Rahul Sawhney and PW6 Inpsector Ramesh Lamba have described the search and seizure proceedings that took place at the spot, in detail. The fact that after seizure, the case property was produced before the officer empowered U/s. 53 of NDPS Act, in compliance of provisions of Section 52 and 55 of NDPS Act has been proved by PW1 Inspector Rajendra Singh Sehrawat. The fact that the case property was kept in safe custody has been proved by PW2 ASI M Baxla, MHC(M). PW9 Ct. Narender Singh has proved that DD No.10 regarding secret information and the reports U/s. 57 NDPS Act regarding seizure of heroine prepared by Mr. Ramesh Lamba and report about the arrest of accused persons prepared by SI Virender Tyagi were received in the office of ACP and the said reports were put up before the ACP concerned. The deposition of PW13 HC Inderjeet makes it clear that samples drawn out from the recovered substance in the proper custody were taken to FSL Rohini for examination. PW8 Dr. Madhulika Sharma, Chemical examiner has proved that the samples examined by her had tested positive for diacetylmorphine. The testimony of the prosecution witnesses is trustworthy and believable and nothing has emerged in the cross examination of the aforesaid witnesses which casts doubt on the veracity FIR No. 41/10 Page 23 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 of their statements.
34.Accused Ramzan @ Johny in his statement u/s 313 Cr.PC has admitted that he is a Pakistani national. He is giving his own reasons regarding his false implication in this case. It is stated by him that on a particular day when he was in his village Lakho in Pakistan, he got drunk and when he regained consciousness, he found himself near the banks of river Ravi in Punjab, India and he had not intentionally infiltrated in India but got swept away in the river Ravi and reached India. He has further stated that some police officials picked him up in Punjab when he was walking on a road and brought him to Delhi in a white gypsy and he was falsely implicated in this case. In my view, the version put forward by this accused regarding his entry into India is mind boggling and is completely unbelievable.
35.Accused Naresh Sharma in his statement u/s 313 Cr.PC has admitted that he had checked into hotel JV Continental, Amritsar on the intervening night of 2728 August, 2010 but he has stated that Jyoti Sharma had not accompanied him in the hotel. He has admitted that he made entry Ex.PW15/A in his own handwriting in the register of the said hotel but it was completely in different circumstances. According to him, one Sh. S.K. Yadav had hired his services as a taxi driver and on his request, he had picked him from Jammu and had first taken him to Phugware, where FIR No. 41/10 Page 24 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 he had attended a meeting and after the said meeting finished at about 10.30 PM, Sh. S.K. Yadav told him that he had to attend a meeting in Amritsar in the morning and that therefore he should take him to Amritsar. He also told him that since it would be night when they reach Amritsar and he had not made any hotel arrangement, Mr. Yadav asked him to book a hotel room for a night and in this background, he booked a room at JV Continental and on the asking of the hotel receptionist that the booking had been done in his name, he filled up the entry register in the hotel and made entry Ex.PW15/A where he mentioned that one person was accompanying him who was a tourist. He further stated that both of them had stayed in one room which is mentioned in Ex.PW15/A. In my view, the story put forward by accused Naresh Sharma is not believable as it is highly unlikely that the hotel staff would ask a taxi driver to fill the entry in the hotel register regarding their stay and further it is highly unlikely that any passenger would allow the taxi driver to stay with him in the same room during the night. The said passenger Mr. S.K. Yadav has not been examined in the defence also.
36.Accused Jyoti Sharma in his statement u/s 313 Cr.PC has put forward his own version regarding his false implication in this case. It is stated by him that he is basically a native of Jammu but in the year 2009 he had to leave Jammu as a criminal case out of a family feud had been registered FIR No. 41/10 Page 25 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 at Jammu and thereafter he started residing in Delhi and he did not have any job and his brother in law (Sala) Naresh Sharma, who is a taxi driver used to arrange for his expenses whenever he used to drive to Delhi and nearby areas. He further stated that a day or two prior to 27.08.2010, Naresh Sharma told him that he would be coming to Amritsar to leave a passenger and then he (Jyoti Sharma) told him that he would also come to Amritsar to meet him and to take money from him and hence he reached Amritsar on 28.08.2010 in a Santro car arranged by his friend and met Naresh who handed over Rs. 10,000/ to him and thereafter while they were returning to Delhi through Chandigarh they were apprehended by certain persons between Sonepat and Kundli and they were falsely implicated in this case. In my view, the story put forward by accused Jyoti Sharma for the purpose of his going to Amritsar does not appeal to the court. It is not believable that in order to take Rs.10,000/ from Naresh Sharma, he would all they way go to Amritsar in a car arranged by his friend after spending petrol of so much amount. It does not appeal to sense for travelling such a long distance by spending so much of amount just for Rs.10,000/.
37.Ld. Counsels for the defence have first of all argued that there is non compliance of section 42 NDPS Act in the present case which is a mandatory provision. It is submitted that as per the case of the FIR No. 41/10 Page 26 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 prosecution, two months prior to 29.08.2010 there was an information with the Special Cell, Lodhi Colony that an international racket of drug peddlers and fake currency notes is operating in Punjab, Jammu & Kashmir and other parts of Northern India and members of the racket are indulging in smuggling of narcotic drug and FICN into India from Pakistan via Indo Pak border at Punjab and one of the members of this racket namely Jyoti hailing from Jammu was concealing himself somewhere in Delhi and he was in direct communication with his counterpart in Pakistan. On this basis, it is argued that although the Special Cell had this information for the last two months prior to 29.08.2010 but inspite of the same, it was not recorded in writing as per the requirement of section 42(1) NDPS Act and which is fatal to the case of the prosecution. They have relied upon certain authorities in support of their contention i.e State of Punjab Vs. Balbir Singh, AIR 1994 SC 1872; Kishan Chand Vs. State of Haryana, AIR 2013 SC 357; Sukhdev Singh Vs. State of Haryana, AIR 2013 SC 953 and Gurjant Singh Vs. State of Punjab, 2013 (13) SCALE 295. Ld. APP for the State has controverted the same. In my view, there is no merit in this contention of the defence. Prior to 29.08.2010, the information with Special Cell was general in nature that an international racket of drug peddlers and fake currency notes was operating in Punjab, Jammu & Kashmir and other FIR No. 41/10 Page 27 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 parts of Northern India and the members of the racket are indulging in smuggling of narcotic drugs and FICN into India from Pakistan and as per the police officials this information was shared with the senior officers and a team led by PW6 Inspector Ramesh Lamba and Inspector Manoj Dixit was constituted under supervision of ACP Special Cell, Sh. Bhisam Singh for developing of the said information. As per the case of the prosecution, it was only on 29.08.2010 that specific information was received by PW6 Inspector Ramesh Lamba that Jyoti had received a huge consignment of drugs and FICN from a Pakistani national Johny who had infiltrated into India through Indo Pak border at Punjab and they would be coming to Delhi on that day to deliver the said consignment to their contact in Delhi near Humayu Tomb in Nizamuddin area at about 05.00 PM and this particular information was reduced into writing in the from of DD No.10 which is Ex.PW9/A. In my view, the law does not say that the police officials must record every information in writing when they were developing the information concerned. The information is required to be taken in writing when it comes to their knowledge that any offence has been committed under this Act in relation to any narcotic drug or psychotropic substance or controlled substance or any other article which may furnish evidence of the commission of the said offence is liable to be seized which is kept or concealed in any building, FIR No. 41/10 Page 28 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 conveyance or enclosed place. There is no doubt that compliance of section 42 NDPS Act is mandatory but in view of the above, on the facts of the case, the contention of Ld. Counsels for the defence have no merit.
38.It is further argued by Sh. Vikas Gautam, Ld. Counsel for accused Jyoti Sharma and Naresh Kumar Sharma that the search and seizure proceeding was conducted between sunset and sunrise but the IO did not obtain any search authorization prior to the search of vehicle in question nor did he record the grounds of his belief as contemplated by the provisio to section 42 NDPS Act and hence on this ground, it is submitted that there is non compliance of section 41(2) and section 42(1) of the NDPS Act.
Ld. APP for the State has controverted the said submissions by stating that in the circumstances of the case, no search authorization was required by the investigating agency.
In my view, there is no merit in the contention of Ld. Counsel for the defence. As per the information available on the internet, on 29.08.2010 the sun had set at 06.48 PM. In the present case, as per the case of the prosecution, the secret information was received at about 03.30 PM that the accused were coming to Delhi in silver colour Indica bearing registration no. JK 2AN 0465 in order to deliver the contraband to one of their contact persons in Delhi and they would meet their contact FIR No. 41/10 Page 29 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 person near a park near Humayu Tomb in Nizamuddin area at about 05.00 PM and in pursuance of the same the raiding party members reached at the spot in time and the vehicle in question came at the spot at about 05.05 PM and after about 15 minutes i.e. at about 05.20 PM, the accused persons were apprehended and subsequently recovery of contraband was effected from them. All this had taken place before the sun had set at 06.48 PM. Although the proceedings continued at the spot till late much after the sun had set but this in itself does not mean that the investigating agency was required search authorization or that the IO was required to record the grounds of his belief as contemplated by the provisio of section 42 NDPS Act.
39.It is next argued by both the Ld. Counsels for the defence that there is non compliance of section 50 NDPS Act. It is argued by Ld. Counsel for accused Jyoti Sharma and Naresh Sharma that notice u/s 50 NDPS Act given to the accused Jyoti Sharma and Naresh Sharma which are Ex.PW4/A and PW4/E respectively bear the FIR number of the case at the top of the said documents although the FIR was not in existence when these notices were served upon the accused persons and similarly other documents also bear the FIR number and hence these are concocted documents which were prepared later to the registration of the FIR and hence there is non compliance of section 50 NDPS Act. On the other FIR No. 41/10 Page 30 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 hand, Ld. Counsel for accused Ramzan has contended that on the notice u/s 50 NDPS Act which was served upon accused Ramzan which is Ex.PW4/C his alleged refusal was recorded by the IO and same is Ex.PW4/D and on this date is mentioned as 28.08.2010 and hence it shows that it is a concocted document prepared by the police and there was no actual service of notice u/s 50 NDPS Act to the accused at the spot as alleged. It is further argued that Inspector Neeraj (PW4) in his crossexamination could not tell how the meaning of gazetted officer was explained to the accused persons. They have relied upon certain authorities i.e Didar Singh Vs. State of Punjab, 2010 (3) JCC (Narcotics) 108; Kalu Ram Vs. State, 1999 (2) JCC (Delhi) 591; NCB Vs. Sukhdev Raj Sodhi, 2011 (4) JCC 212 (SC); Vijay Sinh Chandubha Jadeja Vs. State of Gujrat, AIR 2011 SC 77 and State of Rajasthan Vs. Parmanand & Anr. , AIR 2009 SC 369.
Ld. APP has controverted the same by stating that the FIR number was mentioned on the top of the documents after the registration of the FIR only for the purpose of convenience so that the document could be identified with this case and wrong mentioning of date on Ex.PW4/D on the refusal of accused Ramzam, Ex.PW4/D is only a clerical mistake which has been inadvertently made.
I find force in the contention of Ld. APP for the State. On the FIR No. 41/10 Page 31 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 relevant documents, the FIR number has been mentioned in different ink and by different pen and as it is correctly stated, it may have been mentioned for the sake of convenience so that the documents could be said to be identified with this case. This in itself would not be a ground to see the case of the prosecution with suspicion. Similarly the wrong mentioning of date on Ex.PW4/D also appears to be a clerical mistake because the prosecution witness have deposed in detail about the date and the manner in which recovery of the contraband was effected from the accused persons and it is not possible that the notice u/s 50 NDPS Act was served upon the accused on 29.08.2010 but the refusal Ex.PW4/D was recorded a day earlier on 28.08.2010. It is not the case of the accused that he was actually arrested on 28.08.2010 and deliberately shown to have been arrested on 29.08.2010. About the non compliance of section 50 NDPS Act, Ld. Counsel for the accused Ramzan has stated that PW4 Inspector Neeraj could not tell in his crossexamination as to how the meaning of Gazetted Officer was explained to accused Ramzan which in itself is fatal. In my view there is no merit in this contention as well because the court has to see the entire evidence led by the prosecution. PW5 SI Rahul who was also a part of the raiding party has clearly deposed that the accused persons were explained about the meaning of Gazetted Officer and Magistrate and there is nothing in his cross FIR No. 41/10 Page 32 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 examination to disbelieve the same.
40.It is further argued by Ld. Counsels for the defence that as per the case of the prosecution, ASI Kamal Kishore (PW16) and ASI Bijender Singh (PW7) were the members of the raiding party before whom the entire search and seizure took place but when they were examined in the court as prosecution witnesses, they did not depose about the search and seizure conducted by the raiding party members. ASI Kamal Kishore (PW16) deposed that he alongwith SI Virender Kumar had conducted the house search of accused Jyoti Sharma vide house search memo Ex. PW11/A and besides this, he had not participated in the investigation of this case at any point of time. Similarly ASI Bijender Singh (PW7) had gone to Hotel J.V. Continental on 04.09.2010 alongwith other police officials and the owner of the said hotel had produced relevant register and it was told by the manger that the accused had stayed in their hotel on the intervening night of 2829.08.2010. In this context, it is argued that the claim of Inspector Ramesh Lamba, Inspector Neeraj Kumar and SI Rahul Sahni is false to the extent that ASI Kamal Kishore and ASI Bijender Singh were also members of raiding party on 29.08.2010. This contention is controverted by Ld. APP for the State by saying that when there are large number of police officials forming the raiding party, it is difficult for them to remember the names of each and every member of FIR No. 41/10 Page 33 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 the raiding party. In the present case, it is not as if ASI Kamal Kishore and ASI Bijender did not conduct any investigation in the present case but it appears that they were not the members of raiding party which conducted the search and seizure at the spot and this contradiction when seen in the context of the testimony of the recovery witnesses who have been held to be trustworthy and reliable, does not appear to be much material.
41.It is further contended by both the Ld. Counsels for the defence that although the alleged instance was of 29.08.2010 but on the rukka, the date of sending the rukka has been mentioned as 30.08.2010 which in itself shows that there is fabrication in the documents prepared by the police. It is further pointed out that the sequence of recording of DD No. 10, 11 and 12 is wrong. It is stated that DD No.10 was recorded at 03.40 PM, DD No.11 was recorded at 11.10 PM and DD No.12 was recorded at 04.15 PM which is not possible and this manipulation of documents makes the case of the prosecution highly doubtful.
Ld. APP for the State has not been able to give any cogent explanation in respect of the same. However it is relevant here to state that the case of the prosecution has to be seen in its entirety and if the testimony of the prosecution witnesses is found trustful and the recoveries reliable then this goofup on the part of the investigating FIR No. 41/10 Page 34 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 agency would not be sufficient to see the entire case of the prosecution as doubtful. As far as wrong mentioning of the date on the rukka is concerned, it is relevant here to state that evidence has been led in the court showing that FIR Ex.PW3/A was recorded on 29.08.2010 at about 10.45 PM and endorsement in this regard in the form of DD no.10A was recorded in the rukka itself by Duty Officer ASI Bhagwat Prasad and hence it is not possible that the FIR was registered prior to the sending of rukka. Moreover it has been held in a number of cases that benefit of faulty investigation cannot be given to the accused persons unless and until any prejudice has been caused to them. From the totality of the facts and circumstances, it cannot be said that any prejudice has been caused to the accused persons and the testimony of the prosecution witnesses is trustworthy and reliable.
42.Ld. Counsels for the defence have next emphasized a lot on the point that there was delay of about 10 days in sending the sample parcels to the laboratory and hence it creates doubt in the case of the prosecution. Reliance is placed on an authority titled as Inderdev Yadav and Others Vs. State, 2014 (3) JCC (Narcotics) 129. It is controverted by Ld. PP for the State.
In my view, mere delay in sending the sample parcels to the laboratory cannot be a ground to presume tampering with the case FIR No. 41/10 Page 35 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 property. The delay would be material only where suspicion as to the tampering with case property is brought to the notice of the court. Where there is absolutely no plausible evidence to indicate tampering with the case property, the mere delay in sending the samples to the laboratory cannot be fatal to the case of the prosecution. The prosecution has completed the link evidence of this case by examining all the material witnesses i.e. Inspector Rajender Singh Sehrawat (PW1) to whom the case property was handed over by HC Satish Kumar in the police station; the MHCM ASI M. Baxla (PW2) to whom the case property was handed over by Inspector R.S. Sehrawat for depositing it with malkhana; HC Inderjeet (PW13) who took the sample parcels with CFSL forms from MHCM and got the same deposited with FSL, Rohini and he obtained a receipt thereof which was handed over to the MHCM. All these witnesses have completed the link evidence. There is no evidence to suggest that during the time the case property remained in the possession of the prosecution witnesses, it was tampered with by anybody. It has also been proved that the FSL forms were prepared at the spot, were taken to the PS alongwith the case property and deposited in the malkhana by the MHCM on the instructions of Inspector R.S. Sehrawat. Neither any of the prosecution witness had any reason to tamper with the case property nor any such evidence has come on record. Thus mere FIR No. 41/10 Page 36 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 delay of about 10 days is not sufficient to see that case of the prosecution with doubt.
43.It is further argued by Ld. Counsels for the defence that the police officials did not join any independent witness at the time of search and seizure proceedings inspite of the fact that they were present at the spot for about 1012 hours. It is stated that accused were allegedly arrested from a place near Humayu Tomb in Nizamuddin area and it is a busy place as lot of people come to visit the said tomb and hence it was easy for the raiding party members to involve any independent witness but no sincere efforts must have been put. It is further argued that PW22 SI Virender has admitted in his crossexamination that he has investigated 67 other NDPS cases as well and in none of the said cases, he was able to join any independent witness in the investigation and on this basis, it is argued that it is only a ploy of the police officials to hide the real facts that the accused were infact falsely implicated in this case.
On the other hand, Ld. APP for the State has argued that sincere efforts were made by the raiding party members to join as independent witnesses but the general public is hesitant to join such proceedings.
In my view, it is now fairly well settled that merely because independent witnesses were not joined in the investigation, it would not FIR No. 41/10 Page 37 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 render the testimony of the police officials as untrustworthy. If the testimony of the police officials is found to be trustworthy, in such circumstances, it can be acted upon even in the absence of independent witnesses. It was so held by Hon'ble Supreme Court in M. Prabhulal Vs. Assistant Director of Revenue Intelligence (2003) 3JCC 1631. In the present case, the testimony of the recovery witnesses has been held to be reliable and trustworthy and in view of the same, non inclusion of public witnesses in the investigation in itself does not make the case of the prosecution doubtful. Moreover, it is noticed that members of public are reluctant to join the investigation and come forward and depose, especially in criminal trial for various reasons. In the case of State of A.P. Vs S. Rayappa & Ors. (2006) 4 SCC 512. Hon'ble Supreme Court commented upon the reason for reluctance of public persons to join as witness in criminal cases. In para No.7 of the report, it was observed as under: "On the contrary it is now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal cases because varied reasons. Criminal cases are kept dragging for years to come and the witnesses are harassed a lot. They are being threatened, intimidating and at the top of all they subjected to lengthy cross examination".
FIR No. 41/10 Page 38 of 41
State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10
44.Ld. Counsels for the defence have next highlighted certain contradictions in the testimonies of the prosecution witnesses regarding the use of vehicles by the raiding party members, number of vehicles, owners of vehicles used and regarding the preparation of the site plan. In my view, the discrepancy/contradictions highlighted by the Ld. Counsels are not sufficient to discredit the testimony of the official witnesses. In case titled as Kathi Bharat Vajsur and Anr. V. State of Gujarat AIR 2012 SC 2163, the Hon'ble Supreme Court of India held that :
"19. This Court, in the case of Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra:
(2010) 13 SCC 657, summarised the law on material contradictions in evidence thus:
30.While appreciating the evidence, the court has to take into consideration whether the contradictions/ commissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons (Vide State v.
Saravanan)."
When I evaluate the evidence of prosecution witnesses in the light of the FIR No. 41/10 Page 39 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 above principle, I find that the contradictions pointed out by Ld. Defence counsels are not material at all. They relate to trivial matters without affecting the core of the prosecution case and hence, it is no ground to reject the case of the prosecution.
45.In view of the discussion made above, in my view, prosecution has been able to prove that the accused persons had entered into criminal conspiracy for acquiring, possessing and trafficking of the heroine in question as they were found travelling together in one vehicle as a group and the fact that commercial quantity of heroine was recovered from each of them.
46.In view of the above, all the accused persons are convicted for the offence punishable U/s. 29 read with Section 21 NDPS Act and they are also convicted for the offence punishable U/s. 21 (c) NDPS Act.
47.Accused Ramzan @ Joney has admitted that he is a Pakistani national. His version of entry into India has not been believed by the Court, as narrated above. He has not produced any document for his valid stay in India. He is accordingly convicted for the offence U/s. 14 Foreigners Act as well.
48.The accused have also been charged for the offence U/s. 25 NDPS Act. In my view, Section 25 NDPS Act would be applicable only against the owner or occupier who knowingly permits the vehicle to be used for the FIR No. 41/10 Page 40 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 commission by any other person of an offence punishable under this Act. Admittedly, accused are not the owner of Indica car no. JK 02 AN 0465 which was used in the commission of this offence. It is proved that the said vehicle was taken on hire by accused Naresh Kumar Sharma. Further, they cannot be said to be "occupier" of the said vehicle within the meaning of Section 25 NDPS Act. Hence, they are acquitted of the charge U/s. 25 NDPS Act.
49.Inspite of directions, accused have not filed requisite bond U/s. 437 A Cr.P.C in the sum of Rs.20,000/ with one surety of like amount.
50.Let they be heard on the point of sentence on 20.07.2015.
Announced in the open court
on this 17th day of July, 2015 (Deepak Garg)
Special Judge NDPS : New Delhi
Patiala House : New Delhi
FIR No. 41/10 Page 41 of 41
State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10
IN THE COURT OF SH. DEEPAK GARG : SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS : NEW DELHI
FIR No. 41/10
PS Special Cell
• State Vs. Jyoti Sharma @ Jyoti & Ors.
•
• ORDER ON SENTENCE
• Present: Sh. R.K. Bhati, Ld. SPP for the State.
• All the three convicts from JC.
• Defence counsels Sh. Sumit Sharma and Sh. Vikas Gautam.
• Vide judgment dated 17.07.2015, all the accused persons were
convicted for the offence punishable u/s 29 r/w section 21 NDPS Act and u/s 21(c) NDPS Act. Accused Ramzan @ Johny was also convicted for the offence u/s 14 Foreigners Act.
• The case is today fixed for arguments on sentence to be imposed upon the convicts.
• Ld. APP for the State has mainly contended that the convicts in the present case should be imposed the maximum punishment i.e. 20 years with fine of Rs.2 lac each and that they should not be shown any leniency in view of the gravity of the offence.
• On behalf of convicts Jyoti Sharma and Naresh Sharma, it is stated by Ld. Counsel Sh. Vikas Gautam that they are the sole bread FIR No. 41/10 Page 42 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 earners of their families and that in the totality of the circumstances, they should be sentenced to minimum imprisonment prescribed under the law only.
• On the other hand, Ld. Defence counsel Sh. Sumit Sharma for convict Ramzan @ Johny has submitted that this convict is around 50 years of age and he is the sole bread earner of the family. It is further stated by Ld. Defence counsel that the convict is a Pakistani national and his family is in Pakistan who are completely dependent upon him for their livelihood.
• Ld. Counsels for the convicts have relied upon the authority of Hon'ble High Court of Delhi titled as O. Agbaizu Vs. NCB Crl. Appeal No. 234 of 1996, date of decision 29.01.2003 in support of their contention that minimum sentence be imposed on the convicts. • Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is the imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which crime is done. There is no straight jacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court FIR No. 41/10 Page 43 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. • In the case of State of Karnataka Vs. Krishnappa 2000 (4) SCC 75, Hon'ble Supreme Court has held with reference to sentencing by courts as under:
• 18. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. • • Before the NDPS Act, 1985 came into existence, this field was governed by the Opium Act, 1857, the Opium Act, 1878 and the Dangerous Drugs Act, 1930. The provisions of these enactments were found to be inadequate because of the passage of time and developments in the field of illicit drug traffic and drug abuse at national and international level and thus to consolidate and amend the law relating to narcotic drugs, NDPS Act 1985 was enacted to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances.
FIR No. 41/10 Page 44 of 41
State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 • Narcotic drugs corrode the basic structure of a whole society by
affecting a cultured human society in all respects including destabilising families, reducing human productivity, corrupting trustworthy governments and demoralizing law respecting citizens. Hence the drug traffickers are required to be dealt with sternly. • After considering the facts and circumstances, the convicts are sentenced as under:
• • Name of the • Offence • Sentence convict • Jyoti Sharma • U/s 29 NDPS Act • RI for 12 years and fine of Rs.1 lac. In default SI for 6 months.
• U/s 21(c) NDPS • RI for 12 years and fine of Rs.1 lac. In Act default SI for 6 months.
• Naresh Sharma • U/s 29 NDPS Act • RI for 12 years and fine of Rs.1 lac. In default SI for 6 months.
• U/s 21(c) NDPS • RI for 12 years and fine of Rs.1 lac. In Act default SI for 6 months.
• Ramzan @ • U/s 29 NDPS Act • RI for 12 years and fine of Rs.1 lac. In Johny default SI for 6 months.
• U/s 21(c) NDPS • RI for 12 years and fine of Rs.1 lac. In Act default SI for 6 months.
• U/s 14 Foreigners • RI for 5 years and fine of Rs.50,000/. In Act default SI for 3 months.
• All the sentences shall run concurrently. Fine not paid. Benefit of section 428 Cr.PC is given to the convicts and the imprisonment already FIR No. 41/10 Page 45 of 41 State vs. Jyoti Sharma @ Jyoti & Ors. SC No. 23/10 undergone by them shall be set of against the substantive period of sentence awarded to them.
• Copy of the judgment and the sentence be given to the convicts free of cost. Requisite bonds u/s 437A Cr.PC has not been furnished by the convicts inspite of the directions of the court.
• Copy of the order be sent to Jail Superintendent for compliance.
• File be consigned to record room.
• Announced in the open court
• on this 20th day of July, 2015 (Deepak Garg)
• Special Judge NDPS : New Delhi
Patiala House : New Delhi
FIR No. 41/10 Page 46 of 41