Delhi District Court
State vs Mohd. Akram on 2 January, 2007
1
IN THE COURT OF MS. SUJATA KOHLI : ADDL. SESSIONS JUDGE :
DELHI
FIR No. 27/2K
PS Narcotics Branch
U/s 21/29 NDPS Act
Sessions Case No. 72/2K
State
Versus
1. Mohd. Akram
s/o Mohd. Bahar Ali,
R/o Jhuggi No. C-19B/105,
Sanjay Amar Colony, Yamuna Pushta,
Delhi
2. Jugnu s/o Amar Singh,
r/o Jhuggi No. C-19B-480,
Sanjay Amar Colony, Yamuna Pushta,
Delhi
3. Abdul Qasim s/o Abdul Razaak,
r/o Jhuggi No. C-19B/611,
Sanjay Amar Colony, Yamuna Pushta,
Delhi.
4. Khokan s/o Hassan Ali
r/o Jhuggi No. 62-D,
Sanjay Amar Colony, Yamuna Pushta,
Delhi
JUDGMENT
1. All accused persons namely Akram, Jugnu, Abdul Qasim & Khokan have been sent up for trial for offence u/s 21/29 NDPS Act on allegations 2 that on 27.7.2000 at about 8 p.m. at Out Gate, Old Delhi Rly. Station within the jurisdiction of P S Narcotics Branch. They all were found together with Akram as well as Jugnu in possession of 250 gm smack each, Abdul Qasim in possession of 500 gm. Smack& Khokan (later absconded & declared P.O.) in possession of 50 gm. Smack. It was further alleged against them that they all were involved in criminal conspiracy to supply drugs and as such to commit an offence punishable under Chapter 4 of NDPS Act and thereby committed an offence punishable u/s 29 NDPS Act. Accused pleaded guilty & claimed trial. Accused Khokan after being admitted to bail misused the benefit & absconded ultimately declared Proclaimed Offender.
2. Prosecution story is that on 27.7.00, Insp. Attar Singh was posted at P S Narcotics Branch, then at Kamla Mkt. as SI, he had received a secret information at 6.15 p.m. at the P S that three persons namely Akram, Abdul Qasim, Jugnu would be come by Hawra Kalka Mail at Old Delhi Railway Station at 7.45 p.m. and they all would be gone to their houses at J J Cluster Yamuna Pushta with smack in their possession.
3. That Insp. Attar Singh passed this information to Insp. Chander Prabha SHO and produced the informer before her and the SHO passed on the information to ACP M S Chikara at his office, telephonically.
4. That Insp. Attar Singh reduced the information into writing vide DD no. 32 & DD entry in this respect was sent to the Sr. Officer by Dak.
35. That Insp. Attar Singh alongwith Insp. Chander Prabha, Ct. Naresh, Ct. Birender, Ct. Surender, Ct. Satbir, Ct. Naresh, Ct. Dilawar, Ct. Vinod, Ct. Ravinder, Ct. Vijay (driver) & ASI Sultan Singh alongwith informer departed from the P S at 6.45 p.m. in two government vehicles bearing no. DL2CC-2086 & DL1C-4414 for the spot.
6. That at 7.15 p.m. all of the police party reached at Old Delhi Railway Station and both vehicles were got parked near police booth Opp. Rly. Station. Insp. Chander Prabha asked 8 to 10 passers by to join the raiding party but none agreed and left the spot without telling their names & addresses. The SHO then briefed the staff in detail and positioned then at different points near the out gate of the Railway. Stn.
7. That at 8 p.m., at the instance of the informer Akram, Jugnu and Qasim were seen coming from inside the Rly. Stn. and they were stopped near the out gate.
8. That SHO disclosed her identity and also told all three of them about the secret information and served a notice u/s 50 NDPS Act to each one of them in writing. She told each one of them that she was having the information of their being in possession of smack and that it was intended to take their search and that their search could be taken in the presence of any other Gazetted Officer or a Magistrate if they so wanted, but all of them refused.
49. That Insp. Attar Singh conducted formal search of all of them at the instructions of the SHO and ACP M S Chikara had also reached the spot by that time i.e. 8.25 p.m. before Insp. Attar Singh and their search was conducted in the presence of ACP M S Chikara.
10. That first of all Insp. Attar Singh took search of Akram and he was holding a multi colour bag of rexin in his hand on which words "VIP" were written. The said rexin bag was containing some clothes & white colour polythene and it was also found mixed among the clothes which was containing wet brown colour powder. The said substance was tested with the help of testing kit and it was found to be smack. The said substance was weighed with the help of electronic scale and found to be 250 gms. in weight.
11. That Insp. Attar Singh handed over the substance to Insp. Chander Prabha SHO and thereafter he took search of his co-accused Jugnu who was holding a black & yellow colour bag having cloth inside and polythene of white colour was found amongst the clothes containing wet brown colour powder which upon checking was also found to be smack and its weight was also 250 gms. Same was also handed over to the SHO.
12. That thereafter Insp. Attar Singh took search of his another co-accused Qasim and he was also found holding a black colour rexin bag in his right hand on which words " Ruf & Tuf" was written and same was also found to 5 contain a white colour polythene lying amongst clothes found inside the bag. This white colour polythene was also found to contain wet brown colour powder and the weight of which was found to be 500 gms.
13. That ACP M S Chikara left the spot thereafter and out of the smack recovered from his possession, two samples of 10 gm. each were separated and kept in a polythene and converted into parcels with the help of white cloth and given Mark A & B and remaining smack recovered from his possession was also converted into a separate parcel by keeping it in the same polythene from which it was recovered and with the help of white cloth and given Mark C.
14. That similarly two samples were drawn from the smack recovered from the possession of Jugnu, each sample weighing 10 gm. & each sample was converted into with the help of white cloth & given Mark D & E. Remaining smack was allowed to be kept in the same white colour polythene recovered from accused Jugnu & also converted into a parcel with the help of white cloth and given Mark F.
15. That Similarly from the smack recovered from possession of the accused Abdul Qasim also two samples were separated, each of 10 gm. was converted into sample in the similarly manner and given Mark G & H and the remaining smack recovered from him was kept in the same polythene as recovered and also converted into a parcel in the similar manner and given 6 Mark I.
16. That Insp. Attar Singh filled up one FSL form in respect of entire recovery.
17. That Insp. Chander Prabha put her seal of CP on each of the 9 parcels and also on the FSL form and all these 9 parcels alongwith FSL form were taken into possession by Insp. Attar Singh.
18. That at about 11 p.m., the SHO Insp. Chander Prabha prepared a rukka & sent it through Ct. Naresh to the P S for regn. of formal FIR.
19. That HC Paramjit Singh the duty officer registered the FIR.
20. That further investigation of the case was assigned to ASI U R Khan, who was handed over a copy of the FIR and the original rukka by the duty officer. He alongwith the Ct. Naresh Kumar left the spot by government vehicle no. DL -2CC 2086 driven by Ct. Vijay.
21. That ASI U R Khan examined as PW7 reached the spot and met Insp. Chander Prabha and other members of the police party and also all of the persons. Insp. Chander Prabha produced all the accused persons alongwith all the documents before ASI U R Khan.
22. That Insp. Chander Prabha put the FIR No. on the documents, after 7 inquiring from ASI U R Khan and at her pointing out, ASI U R Khan prepared the site plan.
23. That ASI U R Khan also prepared seizure memo of the bag recovered from accused Akram as directed by Insp. Chander Prabha & the memos in this regard have been proved as Ex.PW1/F(pertaining to Akram), PW1/G (pertaining to accd. Jugnu), PW1/H (pertaining to accd. Abdul Qasim).
24. That ASI U R Khan interrogated all the accused persons separately and also conducted their personal search and he also arrested all the accused persons formally and prepared arrest memos in this regard. The personal search memo and the arrest memo pertaining to them have been proved in evidence as Ex. PW1/J, Ex. PW1/L & Ex.PW1/M & arrest memo is Ex. PW1/N, Ex. PW1/P and Ex. PW1/Q.
25. That ASI U R Khan interrogated all the accused persons and recorded their disclosure statement. The disclosure statement of accd. Akram has been proved in evidence as Ex. PW1/K, accused Jugnu has been proved as Ex. PW1/O and accused Qasim has been proved as Ex. PW1/R.
26. That pursuant to the disclosure statement of accused persons, ASI U R Khan alongwith all accused, alongwith Insp. Attar Singh and the orther police staff reached at Rajasthani Basti at Yamuna Pushta and at the said Rajasthani Basti accused persons led the police party to Jhuggi no. 62D and pointed out towards their co-accused Khokan, (declared P.O.) and stated that 8 he was the person on whose behalf they were carrying smack in their possession.
27. That ASI U R Khan alongwith police party apprehended accused Khokan (declared P.O.) and explained to him about the circumstances of the case and about the information given by him and his co-accused Jugnu & Qasim about him and that his search was intended to be taken. He was also informed for his right to be searched before a Magistrate or any other Gazetted Officer and a written notice u/s 50 NDPS Act was also served upon him which has been proved in evidence as Ex. PW1/S to which accused Khokan refused and his refusal was also recorded on the same notice. Same has been proved as Ex. PW1/S.
28. That from accused Khokan also smack was recovered amounting to 50 gms., out of which also two samples were obtained, each of 5 gms. and converted into parcels and given Mark J & K while the remaining smack was kept in the same polythene and also converted into parcel & given Mark L.
29. That separate form FSL was filled & ASI U R Khan put his seal on all the three parcels & on the FSL form in presence of accused persons and these articles i.e. parcel & FSL form were seized vide memo, proved in evidence as Ex. PW1/T.
30. That seal after use was given by ASI U R Khan to Ct. Naresh.
931. That thereafter ASI U R Khan formally arrested accused Khokan & his personal search was conducted vide memo Ex. PW1/U & his arrest memo was proved as Ex.PW1/V.
32. That in the meantime Insp. Chander Prabha left the spot alongwith the parcels of the case property and the FSL form and the copy of the seizure memo.
33. That HC Suresh Kumar MHC(M) examined as PW6 has also deposed that Insp. Chander Prabha deposited all the above 9 sealed parcels and the FSL form having the seal of CP on all the parcels & entry in this respect was made by the MHC(M) at Sl. No. 115 in register no. 19. The photocopy of the said entry has been proved as Ex. PW6/A.
34. That on same day Insp. Chander Prabha again deposited three sealed parcels & FSL form having seal of U R & CP pertaining to the recovery from accused Khokan and entry in this regard was made by MHC(M), copy of which has been proved as Ex. PW6/B.
35. That on the same day ASI U R Khan deposited three bags containing clothes etc. & articles of personal search pertaining to all the accused namely Akram, Jugnu Qasim & Khokan for which entry was made at the same Sl. No. Copy of which has been proved as Ex. PW6/C collectively.
10The nine parcels were marked A to I.
36. That on 28.7.2000, PW7 ASI U R Khan sent a report u/s 57 NDPS Act to his Sr. Officers, original of which was proved in evidence as Ex. PW2/A through HC Kuldeep Singh SO to DCP, examined as PW2. The original report was produced and proved as Ex. PW2/A having the sig. of DCP at point A.
37. That Parcel no. A, D,G & I and two FSL forms, out of which parcel Mark A, D & G and one FSL form were having the seal of CP while parcel Mark J and the other FSL form was having the seal of U R & CP, were all sent by the MHC(M) examined as PW6 to the CFSL Chandigarh on 21.8.00 through Ct. Surender vide R C No. 42/22. Entry in this regard was made in register no. 19 at Sl. No. 115 itself and copy of which has been proved in evidence as Ex. PW6/D.
38. That the above said parcels & the forms could not be deposited on 21.8.00 and were returned to the MHC(M) by Ct. Surender for which an entry was made at the same Sl. No. 115, copy of which has been proved as Ex. PW6/E.
39. That the parcels mentioned above alongwith FSL forms were again sent by the MHC(M), this time through the Ct. Dilawar Singh, on 28.8.00 to CFSL Chandigarh vide RC No. 44/21. However, the parcels could not be 11 deposited on that day also and the Constable returned the parcels through the MHC(M) on 29.8.00 in intact condition and entries in this regard were made by MHC(M), copies of which have been proved as Ex. PW6/F & G.
40. That on 1.9.00, the parcels above were again sent to CFSL Chandigarh through Ct. Dilawar vide R C No. 49/21 & entry in this regard was made in register no. 19 Copy of which has been proved as Ex. PW6/H.
41. That Ct. Dilawar examined as PW5 has also deposed that on 1.9.00 he took four sealed parcels, out of which three parcels were having Mark A, D & G and seal of CP on them and four sealed parcels Mark J was having the seal of UR & CP and he took these parcels alongwith two CFSL forms each having same seals and that he deposited the same with the CFSL Chandigarh and till the time of deposit, the seals on all the articles were intact. He obtained a receipt for deposit of the parcels of the FSL forms, on the back of the road certificate and came back after depositing the Road Certificate with the MHC(M). The said copies of all the original Road Certificate i.e. no. 42/21, 44/21 & 49/21 above referred, were proved in evidence by the MHC(M) as Ex. PW6/J, K & M.
42. That PW5 has also deposed that so long as the articles remained with him, seals remained intact and no one tampered with the parcels.
43. That Sh. A K Dalela, Jr. Scientific Officer from CFSL, Chandigarh 12 examined as PW8 has also deposed that sample parcels Mark A, D & G & J with there seals intact were marked to him before opening the parcels and that he compared the seals on the parcels with the specimen seals and he found that seals were intact and the sealed tallied with the specimen seals. Thereafter PW8 SH. A K Dalela opened the parcels and analysed the contents by various Laboratories tests such as coloured test, Chromatographic analysis & GCMS analysis, Diacetylmorhpine (heroine) has been detected in samples A,D,G & J.
44. That diacetylmorhpine was detucted in samples Mark A,D,G & J and the percentage of diacetylmorhpine in the respective samples drawn from contraband recovered from accused Akram was found 31.5% (78.75 gm.) in Ex. A, Jugnu 28.2% (70.5 gms.) in Ex. D, Khokan 36.8% (18.4 gms.) in Ex. J & Qasim 28.5% (142.5 gms.) in Ex. G.
45. That after examination the remnant of the parcels were kept in same parcel and sealed with the seal of Chemistry CFSL Chandigarh. PW8 proved his detailed report and this report as Ex. PW8/A.
46. That the case property was produced in Court and identified by PW1. Parcel Mark 'C' having seal of CP was opened. Out of which solid smack in polythene was taken out and PW1 was identified the smack was Ex. P-36. Polythene was Ex. P-37, as having been recovered from the possession of accd. Akram. The cloth used for converting the recovered smack into parcel 13 Mark C was proved as Ex. P-38.
47. That similarly parcel Mark B having seal of CP was also opened and containing solid smack in polythene and PW1 identified the sample smack as Ex. P-39 being the same drawn from the recovered smack from the possession of Akram. Polythene was Ex. P-40 and the cloth used for converting it into parcel was P-41.
48. That similarly parcel Mark A having seal of CFSL was also produced and opened out of which the remnant smack in the polythene was taken up and PW1 identified the remnant smack as Ex. P-42 as being the same has drawn from the recovered smack from the possession of Akram. Polythene was Ex. P-43, white cloth used for converting the sample into a parcel was Ex. P-44.
49. That similarly parcel Mark F having seal of CP was produced and opened and containing solid smack in polythene and PW1 identified the smack as Ex. P-45, polythene as Ex. P-46 and being the same recovered from the possession accused Jugnu. The cloth used for converting the smack into parcel was proved as Ex. P-47.
50. That parcel Mark E having seal of CP was also opened containing solid smack and PW1 identified the smack as Ex. P-48, the polythene Ex. P- 49, the cloth Ex. P-50 as being the same used for converting the sample 14 smack into parcel Mark E.
51. That parcel Mark D having seal of CFSL Chandigarh was opened containing remnant smack in the polythene and PW1 identified it to be the remnant smack as Ex. P-51, polythene Ex. P-52 & cloth Ex. P-53 as being the one used for converting the sample smack into parcel Mark D.
52. That parcel Mark I having seal of CP was also opened out of which solid smack was taken out and PW1 identified the smack as Ex. P-54, polythene as Ex. P-55 as being the same recovered from the possession of accused Qasim. The cloth containing the above articles was proved as Ex. P- 56 as being the same used for converting the recovered smack into parcel Mark I.
53. That parcel Mark H having seal of CP was opened, out of which sample smack in polythene was taken out and PW1 identified the remnant smack as Ex. P-57, polythene as Ex. P-58 and cloth used for converting into parcel as Ex. P-59.
54. That parcel Mark G, having seal of CFSL Chandigarh was opened, out of which remnant smack in polythene was taken up and PW1 identified the smack as Ex. P-60 & polythene Ex. P-61, cloth Ex. P-62 has been the same as used for converting the sample smack into parcel Mark G.
55. That parcel Mark L sealed with the seal of UR & CP was also 15 produced in Court during testimony of PW7 ASI U R Khan, for the first time and being opening was found to contain green colour polythene containing the smack. The smack was Ex. P-1, green colour polythene was Ex. P-2 as being the same has recovered from the possession of accused Khokan, white cloth was Ex. P-3 as being the one used for converting the recovered smack [into the parcel Mark L.
56. That parcel Mark K having seal of CP & U R was opened containing sample smack in a polythene and PW7 identified it to be sample smack drawn from the smack recovered from accused Khokan and sample smack was Ex. P-4, polythene was Ex. P-5, white cloth was Ex. P-6 which was used for converting the sample into parcel Mark K.
57. That parcel Mark J having seal of CFSL was opened, out of which remnant smack in polythene was taken out remnant smack was proved as Ex. P-7, being the same drawn from smack recovered from your co-accused Khokan, polythene being Ex. P-8, cloth Ex. P-9 used for converting the sample smack into parcel Mark J.
58. That the bags recovered from the possession of accd. Akram as well as from the possession of accused Qasim & Jugnu were also produced and identified by PW7 as being Ex. P-10, Ex. P-11, Ex. P-12. The three clothes found in the bag were also Ex. P-10 and were collectively Ex. P-13. Five clothes recovered from the bag Ex. P-11 and were collectively Ex. P14.
16Three clothes recovered from bag of accused Jugnu collectively Ex. P-15.
59. That amongst the articles of personal search, carbon copy of notices u/s 50 NDPS Act served upon accused persons were also produced has been Ex. P-20, Ex. P-16, Ex. P-26.
60. Following witnesses were examined on behalf of prosecution :
PW1 SI Attar Singh - recovery witness.
PW4 Ct. Naresh Kumar - recovery witness.
PW2 HC Kuldeep Singh - SO to DCP - proved report u/s 57 NDPS Act.
PW3 HC Paramjit Singh, duty officer - proved FIR PW5Ct. Dilawar Singh - took sample parcels to FSL PW6 HC Suresh Kumar MHC(M) - proved deposit of case property with him.
PW7 ASI U R Khan - second IO PW8 Sh. A K Dalela - JSO - CFSL Chandigarh - proved the FSL report.
61. When PW8 had been examined, all accused admitted their guilt and prayed for a lenient view.
62. Since the stage of charge & pleading guilty or not guilty had passed long back & since sufficient incriminating evidence against the accused had 17 already come up, their statements were recorded u/s 313 CrPC. All accused persons admitted the recovery and the entire incriminating evidence against them.
63. Hence all accused are found guilty under the provisions of Section 21 & 29 of NDPS Act and are convicted accordingly.
ANNOUNCED IN THE OPEN COURT ON 02.01.2007. ( SUJATA KOHLI ) ADDL. SESSIONS JUDGE DELHI 18 ORDER ON SENTENCE
1. Amicus Curiae Ms. Sadhna Bhatia appointed for the accused persons failed to appear to make any submissions. On the other hand Ld. Substitute APP has opposed a lenient view stating that offence is of a grave nature being against the society as a whole.
2. Accused persons are all of young age and they state that they happen to be the only earning members of their respective families and besides they are not having any criminal back ground and have been in custody since 27.7.2000 i.e. a period of almost seven years. All the accused pray for leniency.
3. I have perused the file. No previous conviction of any of the accused has been brought on record. Recovery from the possession of the accused is not a commercial quantity as discussed above. It has been held that in 1981 Criminal Law Journal 283 that where ever the accused pleads guilty, a lenient view be taken at the time of imposing sentence upon him. Section 21 (b) NDPS Act provides as under:
"Punishment for contravention in relation to manufactured drugs and preparations - Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures,possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation 19 containing any manufactured drug shall be punishable -
(a) ...................
(b) where the contravention involves quantity, leaser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees."
And Section 29 of the NDPS Act provides as under :
"Punishment for abetment and criminal conspiracy - (1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy and notwithstanding anything contained in section 116 of the Indian Penal Code, be punishable with the punishment provided for the offence.
(2) A person abets, or is a party to a criminal conspiracy to the commit, as offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which -
(a) would constitute an offence if committed within India; or
(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India."
4. Keeping in view the fact that the accused persons have admitted the 20 guilt and also the fact that they have already been in custody for the last almost 6 years, I am inclined to take a lenient view and pass the following sentence accordingly :
Convict Akram - 6 years for the offence u/s 21 NDPS Act, fine of Rs. 1,000/- IDSI 30 days; one year RI for the offence u/s 29 NDPS Act, fine of Rs. 500/- IDSI 15 days.
Convict Abdul Qasim - 6 years for the offence u/s 21 NDPS Act, fine of Rs. 1,000/- IDSI 30 days; one year RI for the offence u/s 29 NDPS Act, fine of Rs. 500/- IDSI 15 days.
Convict Jugnu - 6 years for the offence u/s 21 NDPS Act, fine of Rs. 1,000/- IDSI 30 days; one year RI for the offence u/s 29 NDPS Act, fine of Rs. 500/- IDSI 15 days.
Benefit of Section 428 CrPC shall be extended to all the convicts. Copy of judgment & order on sentence be given to each convict free of cost.
ANNOUNCED IN THE OPEN COURT ON 02.01.2007. ( SUJATA KOHLI ) ADDL. SESSIONS JUDGE DELHI 21