Delhi District Court
State vs Ishtkar Khan @ Javed Son Of Nishar Khan on 19 May, 2010
IN THE COURT OF SH. SUDESH KUMAR: SPL. JUDGE NDPS
ADDL.SESSIONS JUDGE (NORTH-EAST) KAKRADOOMA COURTS,
DELHI
SC 36/2007
FIR 30/2007
PS Narcotics Branch
Under section 21 NDPS Act
State Versus Ishtkar Khan @ Javed son of Nishar Khan
resident of Village Illaichipur, Loni
District Ghaziabad (UP)
Date of Institution 7.5.2007
Date of hearing arguments 19.5.2010
Date of decision 19.5.2010
JUDGMENT
Thereafter, SI Sunil Jain recorded the factum of secret information as DD No. 5- A at 5.00 am and delivered copy thereof to the SHO for onward transmission to higher officers in compliance of section 42 NDPS Act, who forwarded the same to the senior officers. Thereafter under the directions of the SHO, SI Sunil Jain constituted a raiding party comprising of himself, Ct,Rajbir, Ct.Omprakash, Ct.Sohanpal & Ct.Satbir. Equipped with the Field Testing kit, Electronic Weighing scale and the IO bag, they all along with the secret informer, left the police station in official vehicle No.DL-1CF-3426 being driven by Ct.Satbir after making DD entry No.6-A at 5.15 am and reached Aggarwal Sweets at 6.00 am, via Pushta Road, Gandhi Nagar, Shastri Park and after taking U turn at Khajoori Chowk. On the way, just outside the police station five passers by and at Shastri Park red light four auto-rickshaw drivers at the spot four passers by were asked to join the raiding party by disclosing the facts of the secret information but they all left expressing their inability without disclosing their names and addresses.
Briefly the facts of the prosecution case, as per the police report under section 173 Cr.PC & the accompanying documents, are that on 19.3.2007, at about 4.30 pm, a secret informer came to the police station and informed SI Sunil Jain that a person namely SC 36/2007 FIR 30/2007 Page 1/11 Ishtkar Khan @ Javed who alongwith his wife used to supply the heroin in Delhi and surrounding areas, would come in between 6.15 to 7.00 am, at Aggarwal Sweets, near Khajoori Chowk, Loni Ghaziabad Road, Delhi, to supply huge quantity of heroin to someone and if raided they both could be apprehended with the heroin. After enquiring qua genuineness of the information, SI Sunil Jain produced the secret informer before the SHO at 4.45 am and also disclosed the facts of the secret information, who too after his satisfaction, informed ACP (N&CP) Norbu Shering at his residence who directed to conduct the raid and take legal action.
Thereafter, SI Sunil Jain got the official vehicle parked 100 meters ahead on Loni Ghaziabad Road, and deployed Ct.Satrbir by giving instructions to bring the vehicle upon singnal, and after briefing the members of the raiding party in detail, at about 6.10 am, SI himself, Ct.Sohanpal & the secret informer took position in front of Aggarwal Sweets and positioned other members of the raiding party in a radius of 20 meters. At about 6.25 am, a boy wearing a parrot colour shirt and brown colour pent came after crossing the red light from the side of Loni Khajoori Road whom the secret informer identified as the accused. The said person stood in front of Aggarwal Sweets and started waiting for someone. After waiting for 3-4 minutes when accused started moving back, SI Sunil Jain on being pointed out by the secret informer, with the help of accompanying staff overpowered the accused. SI Sunil Jain introduced himself and the members of the raiding party to the accused and asked about his particulars who disclosed his details as mentioned in the heading. The accused was informed about the facts of the secret information and in this context a notice under section 50 NDPS Act was served upon him The accused was apprised of his legal rights and meaning of the words Gazetted Officer & the Magistrate. After understanding his legal rights and meaning of the words Gazetted officer & the Magistrate the accused refused the offers extended vide notice under section 50 NDPS Act As the accused was illiterate, his refusal was recorded by the SI himself in his own hand and in token of correctness of the endorsement of refusal, the accused appended his left hand thumb impression.
Before starting further proceedings, SI asked 6-7 persons out of the crowd gathered out of curiosity to join the police proceedings but they all expressing their inability left without disclosing their names and addresses and the crowd scattered.
SC 36/2007 FIR 30/2007 Page 2/11Thereafter SI Sunil Jain took cursory search of the accused which led to recovery of black colour polythene bag from the right side pocket of the wearing pent of the accused. After taking the same into possession, on checking, it was found to contain one transparent polythene bag containing brown colour powder, opening whereof was tied with a rubber band.
After removing the rubber band and checking the said powder with the help of Field Testing kit it was found to be heroin and on weighing with the help of electronic weighing scale it was found to be 150 grams. Out of the same, two sample parcels of 5 grams each were taken out, kept in two transparent polythene pouches and openings thereof were tied with rubber bands, converted into white cloth parcels and were given mark A & mark B. The remaining 140 grams heroin was kept back in the same polythene bag and after closing the opening with the rubber band and keeping back in the same black colour polythene, it was also converted into white cloth parcel and was given mark C. Concerning the recovery of the contraband, form FSL was filled up and seal of 5CPS NB Delhi, was affixed on all the three parcels and form FSL and seal after use was handed over to Ct.Om Prakash and all the three parcels and form FSL were taken into possession vide seizure memo.
Finding prima facie commission of an offence under section 21 NDPS Act by the accused, SI Sunil Jain prepared a Tehrir and handed over the same to Ct.Sohanpal besides the parcels mark A B & C, form FSL and copy of the seizure memo with the directions to hand over the Tehrir to the Duty officer and produce the remaining articles before the SHO for compliance of section 55 NDPS Act. Ct.Sohanpal left the spot in the official vehicle being driven by Ct.Satbir and after reaching the police station, complied with the directions given by SI Sunil Jain.
As further investigation of the case was entrusted to ASI Paramjeet Singh, he alongwith HC Jagat Kumar left for the spot in the official vehicle. The SHO affixed his official seal of 1 SHO NBR Delhi on all the three parcels, form FSL and noted down the details of the case on the parcels and form FSL and got the same deposited with the MHCM and got recorded DD No.11-A in this regard at 10.55 am ASI Paramjeet Singh after reaching the spot prepared the site plan at the pointing out of SI Sunil Jain, recorded statement of Ct,Omprakash under section 161 Cr.PC, SC 36/2007 FIR 30/2007 Page 3/11 interrogated the accused, arrested him after conducting his personal search, recorded his disclosure statement, got deposited the articles of personal search of the accused with the MHCM, recorded further statement of the witnesses concerning recovery of contraband and investigation of the case, both SI & ASI prepared reports under section 57 NDPS Act and produced the same before the SHO for forwarding the same to senior officers. Later on, the sample parcel was got sent to FSL Rohini, through HC Vijaypal vide RC No.208/21 for analysis and result.
During the course of investigation, on the basis of disclosure statement of the accused, efforts to trace out the source of supply namely Hawa Bibi resident of Kasim Vihar, were made but without any result since the accused was not aware of the house Mentioning that FSL result would be filed upon receipt, challan was prepared and presented in the Court for trial of the accused.
After supplying copies of the police report & accompanying documents to the accused arguments on the aspect of framing of charge were heard. During the course of arguments, upon learned Adl.PP for the State and learned counsel for the accused conceding that charge under section 21(a) NDPS Act is made out, a charge under section 21(a) NDPS Act was framed against the accused, to which the accused pleaded not guilty and claimed trial.
In order to prove the case against the accused, the prosecution examined six prosecution witnesses and when the matter was at the stage of further prosecution evidence, accused stated that he is voluntarily ready to confess his guilt. Keeping in view the submission made by the accused, prosecution evidence was closed.
Statement of the accused under section 313 Cr.PC recorded in which the accused has admitted it as correct that on 19.3.2007, at about 6.30 am, near Aggarwal Sweets, Khajoori Red light, Bhajanpura, Delhi, he was found in possession of 150 grams heroin
- a contraband without license or permit and he has further admitted all the proceedings carried out in the present case by the raiding party and IO of the case as correct.
SC 36/2007 FIR 30/2007 Page 4/11Arguments heard. File perused.
PW-1 is SI Satish Rana SO to DCP Narcotics, who has deposed that on 20.3.2007, two reports under section 57 NDPS Act pertaining to the present case were received in the office of DCP Narcotics, vide entry at Srl.No.760 & 761. He has proved the entry in the diary register as Ex.PW-1/1 and deposed that the said reports were placed before the DCP who appended his signatures thereon. He identified the signatures of DCP AS Cheema thereon and proved the reports as Ex.PW-1/2 & PW-1/3.
PW-2 is HC Ishwar Singh who has deposed that while working as MHCM on 19.3.2007, three parcels mark A B & C, form FSL having the seals of 5CPSNB Delhi & 1 SHO NBR Delhi, and carbon copy of seizure memo pertaining to the present case were deposited with him by the SHO and he made entry at Srl.No.643 (Ex.PW-2/1) in this regard. On the said day, ASI Paramjeet Singh also deposited articles of personal search of the accused and he made entry Ex.PW-2/2. On 23.3.2007, he sent one parcel mark A alongwith form FSL to FSL Rohini vide RC No.209/21 through HC Vijaypal and made entry in register No.19 (Ex.PW2/3) and HC Vijaypal handed over carbon copy of the Road certificate bearing receipt of FSL for the articles sent to FSL and receipt concerning the same is Ex.PW-2/6. Later on 4.5.2007, HC Praveen Kumar handed over the result and parcel A duly sealed with the seal of FSL, qua which he made entry in register No.19 (Ex.PW-2/4) and on 8.5.2007 he handed over the result to IO of the case vide entry Ex.PW-2/5. PW-5 is ASI Ghasi Ram Duty officer PW-3 Ct.Sohanpal and PW-6 HC Omprakash are the members of the raiding party and recovery witnesses and PW-4 is ASI Paramjeet Singh is the 2nd IO of the case. PW-6 HC Om Prakash has fully supported the case of the prosecution and has deposed that on 19.3.2007 he was posted at PS Narcotics Branch, Shakarpur as Constable and on that day at about 5.00 am, SI Sunil Jain constituted a raiding party comprising of himself, Ct. Rajbir, witness & Ct. Sohanpal and informed about secret information that one person namely Ishtikar Khan @ Javed resident of Ilaychipur, Loni, who used to smack heroin along with his wife, would come in between 6.15 am to 7.00 am in front of Aggarwal Sweets , Khajuri Khas red light, Delhi to supply heroin to someone. Thereafter, at about 5.15 am, the members of the raiding party along with the secret informer left the PS in official vehicle No DL 1CF 3426 being driven by Ct SC 36/2007 FIR 30/2007 Page 5/11 Satbir. Before leaving the PS, SI Sunil Jain had taken his IO bag, Field testing kit & Electronic weighing machine On the way, at Pushta road after leaving the PS, SI Sunil Jain asked 4-5 passersby and 4 TSR drivers at Shastri Park red light, to join the raiding party, but none agreed and left the place without disclosing their names and addresses. As per this witness, they reached the spot i.e. Aggarwal Sweets, Wazirabad road, at about 6.00 am where SI Sunil Jain asked 4 public persons to join the raiding party but none agreed and left without disclosing their names and addresses. The official vehicle was parked towards Ghaziabad side from the Aggarwal Sweets at a distance of 100 meters and Ct. Satbir was deputed on the vehicle with the direction to bring the vehicle as and when signal is given. Thereafter, SI Sunil Jain briefed the members of the raiding party in detail and , a trap was laid there. SI Sunil Jain along with Ct. Sohanpal and the secret informer took their position in front of Aggarwal Sweets while other members of the raiding party took the position in the area of 20 meters. At about 6.25 am, accused present in the court came from the side of Loni and he reached in front of Aggarwal Sweets after crossing the red light. Secret informer pointed out towards the accused and left the spot. At that time accused was wearing brown colour pant and guava colour shirt. Accused stood in front of Aggarwal Sweets and started waiting for some one and when after 3-4 minutes he started to move from there, he was apprehended at about 6.30 am. SI Sunil Jain introduced himself and the members of the raiding party to the accused and also told the accused that he received an information that he is in possession of heroin and his search is to be taken. SI Sunil Jain further apprised the accused of his legal rights. Thereafter, SI Sunil Jain asked the accused that if he wanted his search could be taken in the presence of Gazetted officer or a Magistrate. SI Sunil Jain further asked the accused that if he wanted he could take the search of the police officials and that of official vehicle prior to his own search, but accused refused both the offers. Thereafter, SI Sunil Jain prepared notice under section 50 NDPS Act and carbon copy of the same was served upon the accused. SI Sunil Jain also read over the contents of the notice to the accused. Notice under section 50 NDPS Act in original on record is already Ex PW 3/1 which bears his signatures at point B and thumb impression of the accused at point X. Reply of the accused was also recorded by SI Sunil Jain on the original notice under section 50 NDPS Act and same is Ex PW 3/2 which bears his signatures at point B and SC 36/2007 FIR 30/2007 Page 6/11 thumb impression of accused at point X. Thereafter, SI Sunil Jain asked 6-7 persons, who collected there, to join the proceedings but none agreed. Thereafter, SI Sunil Jain conducted the cursory search of the accused and one black colour polythene bag was recovered from the right pocket of his wearing pant. On checking the said polythene bag it was found containing one transparent polythene bag tied with a rubber band, which further found to contain brown colour powder. Thereafter, the recovered powder was tested with the help of field testing kit after removing the rubber band and it was found to be heroin. Thereafter the recovered heroin with transparent polythene bag was weighed and it was found to be 150 grams out of which two samples of 5 grams each were taken out and samples were put in two separate transparent polythene pouches tied with the rubber bands and then converted into parcels mark A and B. Remaining heroin in the same transparent polythene bag was again tied with the same rubber band and converted in to parcel mark C. All the three parcels were sealed with the seal of 5CPSNBDELHI SI Sunil Jain also filled up FSL form and seal mark of 5CPSNBDELHI was affixed on the same. After use the seal was handed over to him. Thereafter, all the three parcels, and FSL form were taken into possession vide seizure memo Ex PW 3/3 which bears his signatures at point B and signatures of the accused at point X. Thereafter SI Sunil Jain prepared rukka. Thereafter SI Sunil Jain handed over all the three parcels, FSL form, carbon copy of the seizure memo and rukka to Ct. Sohanpal with the direction to produce the rukka before the Duty officer and remaining articles before the SHO PS Narcotics Branch, who left the spot at about 9.30 am along with the above said articles in government vehicle being driven by Ct. Satbir.
PW-6 has further deposed that at about 12.15 pm, ASI Paramjeet Singh along with HC Jagat reached the spot in the same official vehicle. SI Sunil Jain handed over the documents prepared by him to ASI Paramjeet Singh and also produced the accused before him. Thereafter ASI Paramjeet Singh prepared site plan already Ex PW 4/1 at the instance of SI Sunil Jain. PW-6 has also stated that his statement was got recorded by ASI Paramjeet Singh through HC Jagat from 1.00 pm to 2.00 pm. Thereafter ASI Paramjeet Singh interrogated the accused and thereafter at about 2.15 pm, accused was arrested by ASI Paramjeet Singh vide memo already Ex PW 4/3 which bears his signatures at point A and thumb impression of the accused at point X, and personal SC 36/2007 FIR 30/2007 Page 7/11 search of the accused was also conducted vide memo already Ex PW 4/4 which bears his signatures at point B and thumb impression of the accused at point X. From the personal search of the accused Rs. 20/- and carbon copy of notice under section 50 NDPS Act were recovered. During the course of interrogation, accused made disclosure statement already Ex PW 4/2 which bears his signatures at point B and thumb impression of the accused at point X. Thereafter at about 2.45 pm, they left the spot along with the accused and reached PS Narcotic Branch at about 3.30 pm. There, accused was produced before the SHO Ins. Kharag Singh, who verified the facts of the seizure and arrest from the accused. ASI Paramjeet Singh deposited the personal search articles with the MHCM. His supplementary statement was got recorded by ASI Paramjeet Singh through computer operator Ct. Umesh from 6.00 pm to 6.30 pm. PW-6 has identified brown colour substance Ex.P-1 as the same which was recovered from the accused, transparent polythene bag Ex.P-2 and black colour polythene bag as Ex.P-3 as the same which were recovered from the possession of the accused. He has identified the remnants of the sample as Ex.P-4 as part of the case property recovered from the accused and has identified the cloth piece Ex.P-5 as the same in which sample was sealed. This witness has identified sample parcel mark B (Ex.P-6) in which the sample taken from the case property was sealed.
PW-6 HC Omprakash has fully supported the case of the prosecution and testimony of PW-6 remained unrebuted as accused has not cross-examined PW-6 despite opportunity, accordingly, I find no reason to disbelieve the unrebutted testimony of PW-6 HC Omprakash. Further during his examination under section 313 Cr.PC the accused has admitted it as correct that on 19.3.2007, at 6.30 am, near Aggarwal Sweets, Khajoori Red light, Bhajanpura, he was found in possession of 150 grams heroin Keeping in view the above discussion I am of the considered opinion that the prosecution has succeeded in establishing that on 19.3.2007, at 6.30 am, near Aggarwal Sweets, Khajoori Red light, Bhajanpura, accused was found in possession of 150 grams heroin.
At this stage, learned Addl.PP for the State has submitted that the accused may be convicted under section 21(b) of the NDPS Act as accused was found in possession of 150 grams of heroin - a contraband which is of intermediate quantity in view of the SC 36/2007 FIR 30/2007 Page 8/11 notification issued by Ministry of Finance (Department of Revenue) dated 18.11.2009. Submission considered. The accused was found in possession of 150 grams heroin but as per FSL report, the diacetylmorphine content in the recovered substance are only 1.6 % , as such, the total contraband recovered from the accused comes to 2.4 grams. The present case pertains to the year 2007 and the notification is dated 18.11.2009 and as such the said notification cannot be given retrospective effect and accordingly, I am of the considered opinion that the contraband recovered from the accused is of small quantity, and as such, accused is held guilty of the offence under section 21(a) of Narcotic Drugs & Psychotropic Substances Act, 1985, and is convicted accordingly.
Let the convict be heard on the point of sentence today.
Announced in the open court on this 19th day of May 2010 (Sudesh Kumar) Special Judge NDPS (North-East) Addl. Sessions Judge:Kkd Courts, Delhi SC 36/2007 FIR 30/2007 Page 9/11 IN THE COURT OF SH. SUDESH KUMAR: SPL. JUDGE NDPS ADDL.SESSIONS JUDGE (NORTH-EAST) KAKRADOOMA COURTS, DELHI SC 36/2007 FIR 30/2007 PS Narcotics Branch Under section 21 NDPS Act State Versus Ishtkar Khan @ Javed son of Nishar Khan resident of Village Illaichipur, Loni District Ghaziabad (UP) ORDER ON SENTENCE Heard the convict and the learned Addl.PP for the State on the point of sentence. The convict has submitted that he is not a previous convict, no other case under NDPS Act is pending against him, further he wants to reform himself and he will not repeat such act in future. Accordingly, it has been prayed that a lenient view may be taken and he may be released on the basis of period already undergone.
Learned Addl.PP for the State has submitted that no leniency should be shown to the persons like the convict as they ruin the future of young generation by making them drug addicts.
Submissions considered. The convict is not a previous convict and no other case under NDPS Act is pending against the convict and the convict has submitted that he wants to reform himself and the contraband recovered from the convict comes to only 2.4 gram - a small quantity, as such, a lenient view is taken and the convict Ishtkar Khan @ Javed is sentenced to undergo rigorous imprisonment for two months under section 21
(a) of the Narcotic Drugs & Psychotropic Substances Act, 1985.
The convict is given benefit of section 428 Cr.PC. The period of detention already undergone by the convict during the trial of the case is set off against the sentence of imprisonment, imposed upon him. Since the convict has already undergone imprisonment for more than two months, as he remained in JC from 20.3.2007 to SC 36/2007 FIR 30/2007 Page 10/11 23.5.2007, he is set at liberty forthwith.
Copy of the judgment and order on sentence be given to the convict free of cost. Case property stands confiscated to the State.
File be consigned to the record room.
Announced in the open court on this 19th day of May 2010 (Sudesh Kumar) Special Judge NDPS (North-East) Addl. Sessions Judge:Kkd Courts, Delhi SC 36/2007 FIR 30/2007 Page 11/11