Delhi District Court
12.08.88 Titled As Ajmer Singh vs State Of on 10 March, 2014
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IN THE COURT OF MS SHAIL JAIN: SPECIAL JUDGE:
NDPS: 02: CENTRAL DISTRICT: TIS HAZARI :
DELHI
SC NO. 22/2012
STATE
versus
Edom Simon Chimezie
s/o Edom
R/O Village Ekwe, IMO State, Lagos
Nigeria.
FIR No. : 313/11
Offence U/S : 21 NDPS Act
& u/s 14 Foreigners Act
Police Station :Crime Branch
DATE OF INSTITUTION: 27.03.2012
DATE OF JUDGMENT: 10.3.2014
JUDGMENT
1. The accused Edom Simon s/o Shri Edom , as per prosecution case, was found in conscious possession of 300 grams of heroine on 07.12.2011 at about 9 p.m in front of Main Gate, GPO, Kashmere Gate, Delhi. Accused was also found to be living in India after expiry of his visa. The 1 2 accused was arrested and after completion of investigation, the charge sheet was filed.
2. Accused was charged for the offense punishable u/s 21 NDPS Act read with section 14 of Foreigner Act to which accused pleaded not guilty and claimed trial.
3. Prosecution had examined 10 witnesses in all to prove the case against the accused. The substance of the prosecution evidence is as follows:
4. PW1 HC Jag Narain had deposed that on 07.12.2011, he was posted as Malkhana mohrar at PS Crime Branch. On that date SHO handed over four sealed pulandas along with FSL form and copy of seizure memo. He made relevant entry in this regard in register no. 19. On the same day ASI Devender handed over jama talashi of the accused along with copy of personal search memo for depositing the same in malkhana. He made relevant entry in this regard. On 15.12.2011 he handed over the sealed pullandah along with FSL form and other documents to HC Laxman Persad for depositing the same in FSL, Rohini. He received 2 3 the FSL result along with sealed pulanda on 23.04.2012. He made relevant entry in this regard. The witness had proved the relevant entries made by him in register no. 19 as Ex.PW1/A to Ex.PW1/C.
5. PW2 HC Jai Pal Singh had stated that on 07.12.2011 he was posted as duty officer in PS Crime Branch. He stated that on receipt of rukka , he recorded the FIR of the present case. He also recorded the DD no 32 regarding registration of FIR and DD no. 34 and he proved the copies of the same as Ex.PW2/A to Ex.PW2/C.
6. PW3 ASI Devender Singh has deposed that on 07.12.2011, at about 10:45 PM, Ct Ramdass came in the office as the investigation of this case FIR was marked to him and he along with HC Laxman Prasad and Ct Ramdass reached at the spot where SI Satyawan along with staff and accused Edom Simon Chimiozie met him. SI Satyawan handed over him the prepared documents and the custody of the accused and briefed him about the case. He prepared site plan Ex. PW3/A at the instance of SI 3 4 Satyawan. He recorded the statement of HC Rajender . He then interrogated the accused and arrested him vide memo Ex. PW3/B and conducted his jama talashi vide memo Ex. PW3/C. The carbon copy notice u/S 50 NDPS Act was recovered from his jama talashi. The disclosure statement of accused was reduced into writing by SI Satyawan in English. He deposited the jama talashi of accused in malkhana and recorded the statement of witnesses i.e SHO and MHCM. On 08.12.2011, he prepared compliance of Section 57 of NDPS Act Ex. PW3/E, and placed it before Inspector Vivek Pathak who forwarded the same to ACP. The accused was medically examined. On 15.12.2011, the sealed sample Mark A of this case FIR was sent to FSL through HCt. Laxman Prasad. After completion of investigation, he prepared the charge sheet and forwarded the same to SHO. During the trial he collected the FSL report Ex. PW3/F and filed the same in the court. Carbon copy of Notice is Ex. PW3/G brought by MHCM and taken on judicial record. The witness has further 4 5 deposed that Passport no A00358974 was issued to Edom Simon Chimozie and Visa no. 433035 was valid from 18.07.2008 to 17.11.2008.
7. PW4 HC Om Parkash has deposed that on 07.12.2011, he was posted as Reader, ACP Narcotics Cell, Crime Branch. On that day, he received DD No. 40 dated 07.12.2011 Narcotics Cell forwarded by Inspector Narcotics Cell. He made relevant entry in daily diary register at serial no. 2526. The said DD was put up before ACP Sh. Bir Singh and after going through the same, he signed the same. The copy of the same is Ex.PW4/A bearing signature of ACP at point A. On 08.12.2011, two special reports u/s 57 NDPS Act were received in office which were entered at Serial No. 2534 and 2535 of the relevant register. The same were placed before ACP, Sh Bir Singh and after going through the same, he signed the reports. The copy of the reports are Ex. PW4/B and 4/C bearing signatures of ACP at point A on each. The copy of relevant entry no. 2526, 2534 and 2535 is collectively Ex. PW4/D .
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8. PW5 Inspector C. R. Meena was SHO of PS Crime Branch at the relevant time. He has deposed that on 07.12.2011, at about 10.05PM, Ct. Sohan of Narcotic Cell arrived at office and handed over to him four pullandas mark A, B, C and D, all bearing one seal of 7APS NB Delhi along with FSL form and carbon copy of seizure memo. FSL form was also bearing same seal of 7APS NB Delhi. He put his seal of CRM on all the above said four pullandas Mark A, B, C and D as well as on FSL form . He asked from duty officer about the FIR number of the present case i.e. 313/2011 and mentioned the same and put his signatures on all the four pullandas, FSL form and carbon copy of seizure memo. At about 10.25PM, he called MHC(M) HC Jag Narain along with register no. 19 in office and deposited all the above said four pullandas and documents in the malkhana . HC Jag Narain made the entries in register no. 19. He recorded DD number 33 at about 10.45PM in this regard. ASI Devender Singh arrived in office along with HC Laxman Parshad at about 2.50AM and 6 7 got recorded his statement in the handwriting of HC Laxman Parshad between 2.50AM to 3.10AM (08.12.2011) . On 15.12.2011 , he instructed the MHC(M) to get the sample pullanda along with FSL form and other documents deposited at FSL , Rohini through HC Laxman Parshad vide RC number 587/21.
9. PW6 Laxman Pershad has deposed that on 15.12.2011, as per the instructions of Inspector C R Meena , he reached PS Crime Branch, Nehru Place from Narcotic Cell, Shakarpur . There at PS Crime Branch he received one sealed sample pullanda mark A and FSL Form along with other documents vide RC number 587/21/11 and reached FSL Rohini and deposited the pullanda mark A , FSL Form and other documents at FSL, Rohini. Thereafter he handed over copy of RC and acknowledgment of FSL to HC Jag Narain , MHC(M). Neither any tempering was done by him , nor the same was permitted to be done by anybody else with the pullanda mark A or any other document during the period said documents and pullanda remained 7 8 in his custody. In the intervening night of 78/12/2011 , he had joined the investigation of the present case along with ASI Devender and on that night on the dictation of ASI Devender he had recorded the statement of Inspector C R Meena in his office at PS Crime Branch.
10. PW7 Ct Sohan Pal was also the member of the raiding party. He has deposed in detail about the manner of conducting of raid and recovery of contraband from the accused.
11. PW8 Inspector Vivek Pathak has deposed that on 07/12/2011 SI Satyavan along with informer came to his office . He informed that accused would come between 5.30 to 6 p.m at GPO K. Gate with parcel containing heroine. He made inquiries from informer . He informed ACP Bir Singh who ordered to conduct the raid and take legal action. SI Satyavan lodged DD no 40 at 4.30 p.m regarding secret information and he forwarded same to ACP, carboncopy of which is Ex.PW8/A. On his directions SI Satyavan constituted a raiding party comprising of himself, 8 9 HC Rajender, Ct Sohan Pal,they all left for the spot along with informer. On 08/12/2011, ASI Devender along with accused came to office. He made inquiries from accused. ASI Devender recorded his statement. On 08/12/2011 SI Satyawan produced special report u/s 57 NDPS Act. He forwarded both reports.
12. PW9 HC Rajender was also the member of the raiding party with the IO.
13. PW10 SI Satyavan has deposed that on 07.12.2011, one secret informer came to him and informed that one Nigerian namely Edom Simon , who resides somewhere in the area of Dwarka Morh, used to send heroine concealed in parcel through World Net of Indian Postal Services to the Foreign Countries. The secret informer further informed that at about 5.30PM6.30PM , the Nigerian would come at GPO , Kashmere Gate along with parcel and there might be heroine in those parcel and he can be arrested if raid is conducted. He produced the secret informer before Inspector Vivek Pathak at about 4.15PM who also inquired 9 10 from the secret informer in his office and he further informed telephonically to ACP Sh. Bir Singh, who directed to conduct the raid. He recorded DD no. 40 at 4.30PM which is already Ex. PW8/A. he produced copy of the same before Ins. Vivek Pathak who forwarded the same to Sr. officers. As per the directions of Ins. Vivek Pathak, a raiding party was constituted consisting of himself, HC Rajender and Ct. Sohan Pal. Police party along with secret informer proceeded in Government vehicle no. DL1CM4228 which was being driven by Ct. Ram Dass and departure entry to this effect vide DD no. 41, Ex. PW10/A, was made by the IO. Police party reached GPO, Kashmere Gate via Pushta Road, Geeta Colony Bridge, Lal Quilla at about 5.30PM. On all these three places , he requested four public persons to join the raiding party by telling the facts of the secret information but they did not join and went away without telling their names and addresses. They parked the aforesaid vehicle on the side of Lal Quilla at a distance of 30 meters from gate of GPO. Police party along with secret 10 11 informer took their position at the gate of the GPO on the road side, at about 4.45PM. At about 4.50PM , one Nigerian person was found coming from the side of Lal Quila having white cloth parcel in his right hand. He was identified by the secret informer from the distance of 2025 meters as the same Nigerian. Thereafter, the secret informer left the spot. At about 6PM , that person was apprehended by the IO with the help of staff. On interrogation his name was revealed as Edom Simon Chimozie. Witness stated that he was informed that on the basis of secret information , his search is to be taken including the search of the parcel which he was carrying, thus the accused was informed that he has a legal right to be searched before Ld. MM or any Gazetted Officer. Accused was also informed that he also has a legal right to take search of police party and the search of the vehicle before they take his search. He prepared notice under section 50 NDPS Act in duplicate and gave carbon copy to accused and he obtained signatures as a token of receipt, on original notice vide Ex. 11 12 PW7/A, which bears his signatures at point A , signed by him at point B. Accused had gone through the contents of the notice and thereafter he replied and he made his endorsement in the form of reply on the original notice itself, to the effect that he does not want to be searched before Ld. MM or Gazetted officer and do not want to take search of the police officials including the vehicle. His reply is Ex. Pw7/B, which bears his signatures at point E. he has taken the cloth parcel from the hands of accused and checked the same. That parcel was stitched with the help of thread and the address was mentioned on the parcel as Magarataria, Ethopia and the address of the Sender was Edom Simon r/o Janakpuri , Uttam Nagar, Delhi. He opened the stitches of the parcel and one box was taken out from the cloth parcel . The box was found containing hair wig. The bottom portion of the carton box was got torned and it was found containing two small transparent polythene containing light brown/matiala colour powder. The powder in both the polythene was checked through 12 13 field testing kit and it was found to be heroine . Heroine from both the transparent polythene was taken out and the same was kept in a separate transparent polythene . Then it was weighed on electronic weighing scale and it came to be 300gm of heroine including the weight of polythene. Two samples of 5 gm each were taken out from the heroine and same were kept in two small polythene. Both the polythenes were tied with the rubber band and converted into cloth parcel and both the parcels were given sample A and sample B. The polythene containing remaining heroine was tied with the rubber band and it was also converted into cloth parcel and was given mark C. the broken box pieces , hair wigs , two empty transparent polythenes and the cloth having address were kept in a separate polythene , it was also tied with the help of rubber band and converted into cloth parcel and was given as mark D. He also prepared form FSL. All the four cloth parcels and FSL form were duly sealed with the seal of 7APS NB DELHI. Seal after use was given to HC Rajender. He has taken all the sealed 13 14 parcels and FSL Form into his possession through seizure memo Ex. PW7/C. He prepared tehrir Ex. PW10/B. He gave all the four sealed parcels, FSL form, carbon copy of seizure memo and original tehrir to Ct. Sohan Pal with the direction to hand over the original tehrir before the duty officer for registration of the case and to hand over all the four sealed parcels, FSL form and carbon copy of seizure memo to SHO, Crime Branch. ct. Sohan Pal left the spot in aforesaid government vehicle along with driver Ct. Ram Dass at about 9PM. At about 11.30PM , ASI Devender Singh, HC Laxman along with Ct. Ram Dass in the same Government vehicle came at the spot . He produced original notice u/s 50 NDPS Act, original seizure memo and the custody of accused before ASI Devender Singh. IO/ASI Devender Singh prepared site plan at his instance. IO interrogated accused and at about 1.15AM , accused was arrested. IO prepared arrest memo and personal search memo vide Ex. PW3/B and Ex. PW3/C. At the direction of IO , he recorded disclosure statement of accused vide Ex. 14 15
PW10/B. From the personal search of accused, carbon copy of notice under section 50 NDPS Act , one wrist watch and one letter of identification from High Commissioner of Nigeria , amount of Rs. 750/, one passport in the name of accused and one photocopy of the passport were recovered. IO deposited the case property in Malkhana . Accused had been produced by the IO before Inspector Vivek Pathak. IO made arrival entry to this effect. He prepared report u/s 57 NDPS Act, which is already Ex. PW 8/B. The witness has identified a transparent polythene tied with the rubber band containing "matiyala colour" as Ex. P1, Parcel No. B sealed with the seal of CRM and "7APSNB, DELHI" as Ex. P2, Parcel No. C ie contraband as Ex. P3, Parcel No. D containing 04 ladies hair wigs/ artificial hair, torn card board, two polythenes in which countraband was lying as Ex. P4 .
14. Thereafter prosecution evidence was closed.
15. Statement of accused was recorded u/s 313 CrPC wherein the entire incriminating evidence has been put 15 16 forth and explained to the accused to which he pleaded innocence and false implication. He stated that he has been falsely implicated in this case . Nothing was recovered from his possession . He was lifted by police from Rajiv Chowk while he was going to Metro Station for going back to his residence at Dwarka Mor. His signatures were obtained by the police on blank papers.
16. Accused had stated that he did not want to lead any evidence in defence .
17. I have heard Ld APP for the State and Shri Bharat Bhushan Dhingra , Ld Amicus for accused .
18. Ld Amicus Curiae for accused had argued that sample in the present case was not drawn from each of the polythene allegedly recovered from the accused but was taken after mixing the contraband recovered, as this is wrong practice, benefit of this should be given to the accused. It is also argued that no public witness was joined during raid and hence testimonies of police officials become doubtful being interested witnesses. It is also 16 17 argued by Ld Amicus Curiae that no prosecution witness was able to tell the exact description of the clothes worn by the accused at the time when he was arrested and kayami entry ie DD entry does not bear the name of the accused, place of spot and details of contraband recovered, hence as per section 154 Cr.P.C, requirements of law has not been fulfilled. There are chances of tampering with the sample as sample were sent to FSL, Rohini after delay of 7 days, hence it also raises doubt regarding truthfulness of the prosecution case.
19. It was also argued by Ld Amicus Curiae, while pointing out contradictions in the statements of witnesses that PW7 Ct Sohan Pal had stated that he reached Nehru Place at 10 PM whereas duty officer PW2 HC Jai Pal had stated that Ct Sohan Pal reached at about 10 PM at Malviya Nagar. It is not possible for one constable to reach at two places at same time ie at 10 PM. Hence the testimony of witness is unbelievable. It is also argued by Ld Amicus Curiae that second IO ASI Devender had stated that personal search of 17 18 the accused was deposited at Malviya Nagar, whereas MHCN was present at Nehru Place. Thus, there are contradictions in the testimonies of prosecution witnesses which is material contradictions. In support of his arguments, Ld Amicus has relied upon various judgments and some of them are mentioned as below:
1. 36 (1998) DELHI LAW TIMES 8
2. 2003 (6) SCALE
3. CR. Appeal NO. 408 of 1985 decided on 12.08.88 titled as Ajmer Singh vs State of Haryana
4. 2012 (130) DRJ 471
5. (2007) 1 SUPREME COURT CASES (Crl) 744
6. 2001 II AD (SC) 125
20. On the other hand it is submitted by Ld Addl.P.P for the State that the prosecution has proved its case sufficiently as the witnesses have supported the case of the prosecution. Prosecution had proved its case beyond reasonable doubt that accused was found in conscious possession of 300 18 19 grams of heroine on 07.12.2011 at about 9 p.m in front of Main Gate, GPO, Kashmere Gate, Delhi. It is prayed by Ld Additional P.P that accused be convicted for the offence punishable u/s 21 NDPS Act. It is further submitted by Ld Additional P.P that this case relates to December, 2011 at that time PS Crime Branch was working from Nehru Place and in February, 2012, PS Crime Branch was shifted to Malviya Nagar. It is also stated by Ld Additional P.P that since the witnesses in this case has been examined after the gap of about more than two years and only in February, 2012 PS Crime Branch has been shifted to Malviya Nagar, some confusion and overlapping about the situation of PS Crime Branch is bound to occur in the deposition of the witnesses. It is further argued that this contradiction as pointed out by Ld Amicus Curiae be ignored in the light of the fact explained by him, considering that after gap of two years some confusion can take place regarding the situation of PS Crime Branch which is now established at Malviya Nagar.
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21. I have considered the arguments advanced by Ld counsel for the parties, facts and circumstances of the case, evidence, judgments relied upon by Ld counsel for accused and material on record.
22. The prosecution has proved its case by way of testimonies of 10 witnesses that accused Edom Simon was found in possession of illegal contraband ie heroine as is proved by FSL report Ex.PW3/F. The only argument and defence raised by the Ld Amicus Curiae on behalf of the accused is in respect to the procedure adopted for taking the sample of contraband and also in respect to the contradictions in the testimonies of various prosecution witnesses and third limb of arguments of Ld Amicus Curiae is that testimonies of police officials is untrustworthy as no public witness has been joined.
23. As regards the contradiction pointed out by Ld Amicus Curiae it is important to see that PW7 Ct Sohan Pal has never stated in his examination in chief or in cross examination that he has gone to Nehru Place or Malviya 20 21 Nagar for registration of FIR. He has only stated that he had reached PS Crime Branch at 10 p.m. The contradiction has arisen as per the submission of Ld Amicus Curiae when PW2 HC Jai Pal, who was working as duty officer on that date had deposed before the court that on 07.12.2011 he was working as duty officer in PS Crime Branch, Malviya Nagar. This contradiction in the statement of PW2 has been explained by Ld Additional P. P in his argument and much weightage cannot be given to this discrepancy as the testimony of PW2 HC Jai Pal Singh and PW7 Ct Sohan Pal when read together, clearly proves that Ct Sohan Pal had reached PS Crime Branch at 10 p.m and it is corroborated by the testimony of PW2 HC Jaipal Singh and further from the FIR this fact can be corroborated. I am of the opinion that unwanted importance had been attached to the point of Malviya Nagar mentioned by HC Jaipal Singh in his statement which should be ignored considering the limits of human memory.
24. Even otherwise, IO/ASI Devender Singh examined as 21 22 PW3, had specifically stated that he reached PS Nehru Place at about 2.45pm and deposited jama talashi of accused in malkhana. Thus, it shows that police party along with the accused had reached PS Crime Brach, Nehru Place on 07.12.2011 and jama talashi was also deposited in malkhana at Nehru Place. Therefore, there is no contradiction in the statement of witness as stated by Ld Amicus Curiae.
25. Further PW6 HC Laxman Prasad who had taken the sample from Malkhana and had deposited the same to FSL, Rohini, had also stated that he reached PS Crime Branch, Nehru Place on 15.12.2011 from Narcotic cell, Shakarpur there he received sample pulanda mark A for depositing in FSL, Rohini. This shows that PS Crime Branch was established at Nehru Place and there is no inconsistency in the statements of various police officials examined by the prosecution. Hence this limb of argument of Ld Amicus Curiae is not acceptable as not proved.
26. Further , contention of Ld Amicus Curiae has been that 22 23 testimony of police official is not reliable as no public witness was joined during raid despite there being availability of public witnesses. On this point, it is important to note that all the members of the raiding party ie PW3 ASI Devender, PW7 Ct Sohan Pal and PW9 HC Rajinder have stated that they asked persons to join the investigation but all refused to join the investigation and due to paucity of time, no notice could be given to such public persons. Therefore, testimonies of police officials cannot be considered to be unreliable only because they are police officials. As in Karamjit Singh vs State ( AIR 2003 SC 1311) Hon'ble Supreme Court has held that:
"The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without consideration of independent witness their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of 23 24 other purpose and it is not a proper approach to distrust and suspect them without good grounds.
27. It is also contended by Ld Amicus Curiae that case of the prosecution is not trust worthy as none of the prosecution witness has been able to give the exact description of clothes worn by the accused at the time when he was arrested. I am of the opinion that it would be too impractical for the court to consider that each police official should be able to mention exact description of clothes worn by accused at the time of arrest even after the gap of two years specially in respect to the cases where these police officials are not the witnesses in one or two cases. I am of the opinion that this is expecting beyond the human competence from the police official and it can only be justified if we forget that despite being police official they are still 'human being' and are having their own constraint and restraints of human competence and memory.
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28. Even otherwise, PW10 SI Satyavan had stated that on the date of arrest, accused was wearing Tshirt with horizontal stripes with jean. No further cross examination of PW10 SI Satyavan was conducted on this aspect, hence this argument of Ld Amicus Curiae is also not acceptable.
29. It is also argued by Ld Amicus Curiae that requirements of section 154 Cr.P.C has not been fulfilled. In support of his arguments, Ld Amicus Curiae has relied upon the judgments of Hon'ble High Court of Delhi in case Lala Ram and Thakur Singh vs State 36 (1988) DELHI LAW TIMES 8 and the case 2011 II AD (SC) 125 titled as The State of Rajasthan vs Shri Teja Singh and ors. I have carefully perused these judgments. In none of the judgments anything has been stated by Hon'ble Courts that in case Kayami entry does not mention the details of name of accused, accused will be entitled to acquittal. In the present case rukka had been sent in writing to PS Crime Branch for registration of FIR and there is no delay in lodging the FIR. Entry in respect to registration of FIR has 25 26 been made vide DD no. 32 and DD no 34. These judgments do not provide any support to the accused in the present case.
30. It is also argued by Ld Amicus Curiae that samples were sent to FSL after the delay of almost 7 days, hence there were chances of tampering which raises doubt in the prosecution case. I am of the opinion that chances of tampering does not mean that tampering has also taken place. It is specifically proved by FSL report, Ex.PW3/F, wherein it is mentioned that seals were found intact and tallied as per forwarding authorities specimen seals. When the seals on the parcel sent to FSL, Rohini were found intact and were tallying with the specimen seals, there was no occasion for tampering of the seal or with the specimen seals. It is also stated by PW6 who has taken the samples to FSL that no tampering was allowed to be done when the sample remained in his possession. Similarly PW1 HC Jag Narain had also deposed that during the tenure the case property remained with him nothing was tampered or 26 27 allowed to be done. Hence, this argument appears to have been made only for the sake of argument without there being any basis.
31. In view of above discussion and evidence led by the prosecution I am of the opinion that it has been categorically proved beyond reasonable doubt by the prosecution that accused was found in possession of heroine. Requirements of section 50 of NDPS Act was duly complied with by the police as is deposed by PW7 and PW9 and PW10. The accused refused to be searched in presence of Gazetted Officer or Magistrate hence search conducted of the accused, was conducted in lawful manner. Requirements of section 42, 55 and 57 of NDPS Act have been duly complied by the prosecution.
32. The contention of Ld Amicus Curiae that accused was lifted from Metro Station while he was going to his house, has not been sufficiently proved by him. On this point, Ld Amicus Curiae has stated that accused need not to prove their plea in defence, if they are sufficiently able to create 27 28 doubt. It is the duty of the prosecution to prove the case beyond reasonable doubt. On this point Ld Amicus Curiae has relied upon the judgment titled as Ajmer Singh vs State of HaryanaCrl. Appeal No. 40858 of 1985 . I have carefully perused the judgment of Ajmer Singh vs State of Haryana(mentioned above). Merely stating that accused was apprehended from the Metro Station and not from the spot as stated by the prosecution witnesses, in my opinion, does not sufficiently create doubt in the testimonies of prosecution witnesses. For creating a dent in the story of prosecution, only one statement is not enough. Accused has not examined any defence witness nor any document has been proved on behalf of the accused to prove that actually he was not present at the spot from where he has been stated to have been apprehended. Hence this judgment relied upon by Ld counsel does not apply to the facts of the present case.
33. In the present case, as per the prosecution case, accused was found in possession of 300 grams of heroine 28 29 which on examination by FSL, report Ex.PW3/F was found to be heroine. On this point, Ld Amicus Curiae had relied upon the judgment of Hon'ble High Court of Delhi titled as Basant Rai vs State - 2012 (130_ DRJ 471 wherein Hon'ble High Court has held that if the contraband was recovered in different packets , sample from each packet should have been taken to prove that each packet contained contraband and procedure of mixing contraband together and then taking the sample out of that is not correct procedure. In the case Basant Rai vs State - 2012 (130) DRJ 471 Hon'ble High Court has opined that:
" for example, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband, though all may of the same colour, when we mix the substance of all 8 packet into one or two then definitely, the result would be of the total quantity and not of two pieces.
Therefore, the process adopted by the 29 30 prosecution create suspicion. In such a situation, as per settled law, the benefit there of should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative."
34. In the present case also, accused was found in possession of cardboard box containing artificial hair wigs for ladies and from the bottom of that box, two transparent polythenes were recovered containing contraband as per the case of the prosecution. In the present case, contents of both polythene were mixed by IO and thereafter two sample of 5 grams each was taken out, total quantity of the contraband recovered was found to be 300 grams. In the light of judgment of Hon'ble High Court in Basant Rai vs State (mentioned above), it cannot be said that total quantity of 300 grams recovered from the possession of accused was heroine because proper procedure of taking sample have not been followed by the IO. But simultaneously, it can very well be considered that at least 30 31 some of the portion of the substance recovered from accused was heroine, as sample of 5 grams was taken and proved to be heroine by the document Ex.PW3/F. Though in the light of the judgment of Hon'ble High Court of Delhi, it can not be said that accused was found in possession of commercial quantity of heroine, but he was definitely in possession of more than smaller quantity of heroine.
35. In view of the above discussion, I am of the opinion that prosecution has proved beyond reasonable doubt that accused was found in possession of heroine but prosecution has failed to prove that amount recovered from the possession of the accused was commercial quantity or more than 250 grams of heroine, at best it can be said that he was in possession of quantity more than 5 grams ie more than small quantity but less then commercial quantity ie intermediate quantity. Hence the accused is convicted for the offence punishable u/s 21 (b) NDPS Act.
36. Accused has also been charged for the offence u/s 14 of Foreigners Act as he was found to be residing in Delhi after 31 32 expiry of his visa. PW3 ASI Devender Singh has deposed that Passport no A00358974 was issued to Edom Simon Chimozie and Visa no. 433035 was valid from 18.07.2008 to 17.11.2008. This fact has not been denied by the accused. Hence the prosecution had proved beyond reasonable doubt that accused had committed the offence u/s 14 of Foreigners Act, coupled with the offence u/s 21(b) NDPS Act. Holding the accused guilty, I convict accused Edom Simon u/s 21 (b) NDPS Act, 1985 and u/s 14 of Foreigners Act .
ANNOUNCED IN THE OPEN COURT ON 10.03.2014 (SHAIL JAIN ) SPECIAL JUDGE: NDPS02 CENTRAL DELHI 32