Delhi District Court
State vs Marzeena @ Rahima on 19 November, 2014
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.15/14
FIR No.164/14
PS Jama Masjid
State
Versus
Marzeena @ Rahima
W/o Alamgir
R/o Patri Central Verge Opp. Red Fort
near Kabootar Market, Delhi. .......Accused
Date of institution : 30.09.2014
Date of Judgment : 19.11.2014
J U D G M E N T
Marzeena, accused has been facing trial for an offence U/s 21 of Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act').
2. Accusation levelled against her is that on 15.07.2014, at about 12.20 p.m., when apprehended by the police of PS Jama Masjid on service road, N. FIR No. 164/14 PS Jama Masjid 1 of page 15 S. Marg, Jama Masjid, Delhi, on the basis of secret information, she was found in possession of contraband, weighing 6 grams.
2. It is case of prosecution that when the secret information was conveyed by ASI Mohd. Inaam to senior police officers, he was directed to conduct raid. The ASI then constituted a raiding party consisting of WCt. Anuradha, HC Ram Roop and the secret informer, and headed the same to the disclosed place. While leaving the police station, he took along items like IO kit, electronic scale, Field Testing Kit and seal bearing impression JMII.
At about 12.05 p.m., the raiding party reached the disclosed place and took positions. 15 minutes thereafter, the accused was seen coming from the side of Pegion Market. Secret informer pointed out towards her and had left soon after pointing out the accused. She was then apprehended.
Notice under Section 50 of the Act is said to have been served upon the accused. Since opted to be subjected to search even in absence of Gazetted Officer of Magistrate, her refusal was recorded and lady Ct. Anuradha conducted her search. It led to recovery of brown colour powder from a black FIR No. 164/14 PS Jama Masjid 2 of page 15 colour polythene. As per prosecution version, when tested on field testing kit, the powder was found to be smack. Total smack was found to be 6 grams.
As per prosecution version, two samples, each of 1.5 grams were drawn and turned into two separate parcels. Remaining quantity of 3 grams was turned into a parcel. All these parcels were then sealed with the seal bearing impression JMII. Impression of the seal was affixed on FSL form. Case was got registered by sending rukka from the spot. HC Ram Roop produced the three parcels, FSL form and copy of seizure memo before Inspector Prashant Kumar, who in turn put seal bearing impression JMI on the three parcels and also affixed its impression on FSL form. Case property, FSL form and copy of seizure memo are said to the have been deposited by the SHO with the MHC(M).
Report under Section 57 of the Act is said to have been submitted to the office of ACP through the SHO.
As per prosecution version, one sample parcel and FSL form was deposited at FSL on 31.07.2014. As per report received from FSL, contents of FIR No. 164/14 PS Jama Masjid 3 of page 15 the sample contained Alprazolam also.
3. On completion of investigation, challan was put in court. FSL report, when collected from FSL, Rohini was also submitted to the Court. Copies of challan and accompanying documents were supplied to the accused free of costs U/s 207 Cr.P.C.
Charge
4. Prima facie case having been made out, charge for an offence U/s 21 of the Act was framed against the accused on 11.11.2014, to which she pleaded not guilty and claimed trial. Thereupon, prosecution was called upon to lead evidence.
Prosecution Evidence
5. In order to prove its case prosecution examined, following 7 witnesses: PW1 ASI Mohd. Inaam Investigating officer PW2 HC Ram Roop Witness to arrest & recovery.
PW3 Ct. Jagdeep Singh MHC(M)
PW4 SI Mumtaz Bano Duty Officer
PW5 Ct. Pushpender Who took sample to FSL
PW6 HC Ramesh Reader to ACP
FIR No. 164/14 PS Jama Masjid 4 of page 15
PW7 WCt. Anuradha Witness to arrest and recovery.
Statement of Accused
6. When examined U/s 313 Cr.P.C. the accused has admitted the incriminating material appearing in evidence against her to the effect that on 15.07.2014, she was apprehended by the police party and found in possession of contraband/drug weighing 6 grams. As further pleaded by her, she had purchased this quantity of contraband/drug from a lady, for selfconsumption. However, the accused has opted not to lead any evidence in defence.
7. Arguments heard. File perused.
8. Learned Addl. P.P. has referred to the statements of prosecution witnesses and submitted that prosecution has fully established its case against the accused regarding recovery of 6 gms of contraband from her on 15.07.2014. Learned Addl. PP has submitted that statement of PW7 WCt. Anuradha has gone unchallenged for want of any crossexamination. Learned Addl. P.P. has also referred to the other prosecution evidence and submitted that in this case, requisite compliance was made with provisions of Sec.50 & FIR No. 164/14 PS Jama Masjid 5 of page 15 Sec.57 of the Act. Further, it has been pointed out that to rule out possibility of tampering with case property, the sample and parcels containing the residue were firstly sealed by ASI Mohd. Inaam at the spot, subsequently by the SHO at the police station and then deposited with MHC(M) with seals in tact.
So, the contention is that accused is liable to be convicted of the offence U/s 21 of the Act.
9. On the other hand, leaned defence counsel has submitted that the accused was carrying quantity of drug/contraband little more than small quantity for selfconsumption and that lenient view be taken having regard to the fact that she is in custody for the last about 4 months.
10. As noticed above, accused was apprehended on the basis of secret information. Regarding receipt of secret information PW1 ASI Mohd. Inaam has deposed by stating that on 15.07.2014 at about 11.45 a.m., secret informer met him and disclosed that one lady, aged about 4042 years, would reach at about 12 12.30 pm, on service road, opposite N. S. Marg via Pigeon Market, with smack in her possession and that she could be apprehended in FIR No. 164/14 PS Jama Masjid 6 of page 15 case raid was conducted.
It is also in the statement of PW1 that he recorded DD no.15A, copy whereof is Ex.PW1/A. Ex.PW1/A contains the secret information received by ASI Mohd. Inaam, the factum of production of the secret informer by the ASI before the SHO and also the fact of its communication by him to the SHO and the ACP.
According to PW1 ASI Mohd. Inaam PW2 HC Ram Roop and PW7 WCt. Anuradha, their party left the police station in the company of secret informer and reached service road on N. S. Marg within 1015 minutes. Factum of departure of the party from the police station stands proved from the contents of DD No. 16A Ex PW1/B.
11. As regards arrest of the accused on the service road, N. S. Marg, PW1 ASI Mohd. Inaam, PW2 HC Ram Roop and PW7 WCt. Anuradha have deposed the manner in which the accused was apprehended, at the pointing out of secret informer at about 12.20 p.m., when she was seen coming from the side of pigeon market. Even otherwise, in her statement under Section FIR No. 164/14 PS Jama Masjid 7 of page 15 313 CrPC, accused admitted that on the aforesaid date, time and place she was stopped by the party headed by Mohd. Inaam.
Compliance of Section 50 of the Act
12. Under Section 50 of the Act, the person about to be searched is to be taken to the nearest Gazetted Officer or to the nearest Magistrate without unnecessary delay, if he or she so requires.
PW1, PW2 & PW7 have deposed regarding service of notice upon the accused, as required under Section 50 of the Act. Original notice was delivered to her. Ex PW1/C is the carbon copy of the notice. Its recovery, on personal search of the accused also stands admitted by her in her statement under Section 313 CrPC.
From the factum of due service of notice under Section 50 of the Act upon the accused, from its contents and from the statements of three witnesses, prosecution has proved compliance with this mandatory provision of law. It also stands proved that the accused opted to be searched in presence of Gazetted Officer or Magistrate.
FIR No. 164/14 PS Jama Masjid 8 of page 15
Recovery of contraband
13. According to PW1 ASI Mohd. Inaam, PW2 HC Ram Roop and PW7 WCt. Anuradha the accused was carrying a black colour polythene in her right hand and that from this polythene another transparent polythene containing brown colour powder was recovered.
It may mentioned here that in her statement under Section 313 CrPC, accused has admitted the factum of recovery of the contraband/drug on the aforesaid date time and place. Not only this, statement of PW7 WCt. Anuradha has gone unchallenged for want of any crossexamination despite opportunity.
It is in the statements of the aforesaid 3 PWs that the contraband when weighed on the electronic weighing scale was found to be 6 grams.
Two samples, each of 1.5 grams were drawn from lot, turned into two separate parcels, which were given SI. No. 1 & 2, and sealed with the seal bearing impression JMII. The residue was also turned into a parcel, given mark Sl. No. 3 and sealed with the aforesaid seal. These facts find mention in FIR No. 164/14 PS Jama Masjid 9 of page 15 seizure memo Ex PW1/E, which was prepared at the spot. Seizure memo bears attestation of PW2 & PW7.
It is in the statements of the witnesses that small quantity of the powder, when tested on the field testing kit, was found to be smack. But as per FSL report Ex PX in respect of contents of one of the two samples, same were 'Caffeine', 'Acetaminophen', 'Alprazolam', 'Acetylcodeine', and '6 monocetylmorphine'. This goes to show that the contraband recovered fom the accused contained manufactured drug Alprazolam and that the same did not contain diacetylmorphine so as to say that accused was carrying smack.
14. To rule out possibility of tampering with the case property, ASI Mohd. Inaam affixed impression of seal JMII on the FSL form and handed over the seal to HC Ram Roop. PW2 HC Ram Roop and PW7 WCt. Anuradha have supported the prosecution version regarding sealing of the case property and delivery of the seal, after use, to the former. This fact finds mention in seizure memo Ex PW1/E. All details including use of seal find mention in the rukka Ex PW1/E, which came to be despatched from the spot, soon after the FIR No. 164/14 PS Jama Masjid 10 of page 15 recovery.
15. Further to rule out possibility of tampering with the case property, the case property, FSL form and copy of seizure memo were produced by Ram Roop before Inspector Prashant on reaching the police station.
It is in the statement of PW3 Ct. Jagdeep Singh, the concerned MHC(M) that the SHO deposited with him three sealed parcels lying sealed with the seals of JMI and JMII, FSL form having impression of the same seals and copy of seizure memo. PW3 has proved Ex PW2/C i.e. relevant entry recorded at Sl. No. 1028 in register no. 19. Contents of Ex PW2/C lend corroboration to the version narrated by PW3 and the statement of PW2 HC Ram Roop.
16. As per record, one of the sample parcel was sent to FSL on 31.07.2014 through PW5 Pushpender. It stands established from the statement of PW5 that he collected duly sealed sample parcel and FSL form, from the MHC(M), on 31.07.2014 and deposited the same at FSL Rohini.
FIR No. 164/14 PS Jama Masjid 11 of page 15 From report Ex PX issued by FSL, it stands proved that that the sample bearing seal of JMI and JMII was deposited at FSL Rohini by Ct. Pushpender and further that both the seals on it tallied with the forwarding authority's specimen seal and were found intact.
So, this Court holds that prosecution has ruled out possibility of tampering with the case property till the sample reached the FSL for analysis.
On analysis, expert found that the sample also contained 'Caffeine', 'Acetaminophen', 'Alprazolam', 'Acetylcodeine', and '6monocetylmorphine'. Report of the expert has gone unchallenged, despite opportunity.
Learned Addl. PP has submitted that Alprazolam is one of the narcotics drugs shown at Sl. No. 178 and that the accused having kept in her possession 6 grams of the contraband, she is liable to be convicted for the offence under Section 21 of the Act.
Learned counsel from DLSA has not opposed this submission put forth by learned Addl. PP.
Compliance with provisions of Section 57 of the Act.
17. In this regard, prosecution has examined PW6 HC Ramesh from the FIR No. 164/14 PS Jama Masjid 12 of page 15 office of ACP, Darya Ganj. According to this witness, vide entry at Sl. No. 4427, report under Section 57 of the Act was received at the office of ACP from the office of SHO Jama Masjid. Ex PW6/B is the report. PW6 has deposed that this report was put up before the ACP on 14.07.2014. In this regard, he has proved endorsement made by ACP Sh. J. K. Sharma at point A. This shows compliance with provisions of Section 57 of the Act.
Conclusion
18. In view of the cogent and convincing evidence led by the prosecution, this Court finds that prosecution has established beyond doubt that accused was arrested on 15.07.2014 and found in possession of 6 grams of aforesaid narcotics drug. As a result, this Court holds her guilty of the offence under Section 21 NDPS Act. She is convicted thereunder.
19. Let the convict be heard on the point of sentence.
Announced in Open Court
on 19.11.2014 (Narinder Kumar )
Special Judge(NDPS)
Delhi.
FIR No. 164/14 PS Jama Masjid 13 of page 15
IN THE COURT OF SH. NARINDER KUMAR
SPECIAL JUDGE, NDPS (CENTRAL); DELHI
FIR No.164/14
PS Jama Masjid
U/s 21 of NDPS Act
In the matter of:
State
Versus
Marzeena @ Rahima ......Convict
ORDER ON SENTENCE
19.11.2014
Present: Sh. Rakesh Mehta, Addl. PP for State.
Convict with her husband wife and Ms. Chitra Mal, counsel from DLSA. I have heard the convict, her husband and counsel from DLSA on the point of sentence.
Convict has prayed for leniency on the ground that she is a poor lady. Learned counsel from DLSA has submitted that the accused is in custody w.e.f. 15.07.2014.
Record reveals that convict is in custody for the last 4 months and 3 days. Having regard to all the facts and circumstances of the case including the quantity of the contraband recovered from her, that she is a poor lady and that she is in custody from 15.07.2014, she is sentenced to Rigorous Imprisonment for a period of four months and to pay fine of Rs.1000/ or in default of payment of fine to FIR No. 164/14 PS Jama Masjid 14 of page 15 undergo SI for 2 days, U/s 21of the Act.
The period of imprisonment already undergone during investigation, inquiry and trial to be set off against the period of sentence awarded vide this judgment.
Case property be destroyed of in accordance with law on expiry of period for Appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court
on 19.11.2014 (Narinder Kumar )
Special Judge(NDPS)
Delhi.
FIR No. 164/14 PS Jama Masjid 15 of page 15