Delhi District Court
State vs . 1. Baijnath Mehto on 24 January, 2011
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS
ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI
S.C. No. 150/07
FIR no. 419/07
PS Punjabi Bagh
U/s 20/61/85 NDPS Act
State Vs. 1. Baijnath Mehto
S/o Late Sh. Sumer Mehto
R/o Vill. Bagdogra,
Distt. Darjeeling, West Bengal
2. Rajesh Kumar
S/o Sh. Prem Bahadur
R/o Vill. Bharatsingjot
Distt. Darjeeling, West Bengal
3. Birju Chhetri
S/o Sh. Bharat Chhetri
R/o Vill. Hotchimeen,
Distt. Darjeeling, West Bengal
Date of Receipt : 10.08.2007
Date of Conclusion of arguments : 11.01.2011
Date of Decision : 13.01.2011
JUDGMENT :
1. The accused Baijnath Mehto, Rajesh and Birju Chhetri have been chargesheeted by PS Punjabi Bagh for commission of offence under Section 20/61/85 NDPS Act.
FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 1/27
2. Story of prosecution in brief is that on 11.06.2007, SI K.P. Singh along with Ct. Suresh and Ct. Suman were on patrolling in the area. At about 10.30 am, they all were present near Railway Colony, Bus Stand Main Rohtak Road, Delhi. There, at the bus stand, three persons wearing army colour jackets and caps got down from a blue colour bus having trunks in their hands and one of them was also having a green colour bag. On suspicion, police party asked them to show their identity cards, but they could not show the identity cards. On inquiry, those persons disclosed that there was ganja in those trunks and bags, which was brought from Alipur Dwar West Bengal. Accused persons were apprehended. Mandatory provisions of NDPS Act were complied with. From the possession of accused Baijnath, 20 kg ganja was recovered, from accused Rajesh, 20 kg ganja was recovered and from the possession of accused Birju Chhatri, 30 kg ganja was recovered. Samples were taken. They were arrested. After completion of the investigation, the charge sheet against the accused was filed in the Court. The copies were supplied.
3. Both the accused were charged for the offence punishable U/s 20/29 NDPS Act. All the three accused were charged for the offence punishable u/s 20 NDP Act. The charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed trial. Thereafter the case was fixed for prosecution Evidence.
FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 2/27
4. Prosecution in order to bring home the guilt of the accused, examined 10 witnesses and thereafter, prosecution evidence was closed.
5. Statement of accused persons were recorded u/s 313 Cr.P.C, wherein they denied the entire evidence and stated that they are innocent. They have been falsely implicated in this case. Nothing was recovered from them. Accused Birju Chhatri stated that on 11.06.2007, he had visited Delhi from his native place West Bengal to meet his old mother, but IO of the case had arrested him from New Delhi Railway Station at 7.00 am. His all luggage bag containing clothes was snatched from him and his ticket was also destroyed. IO of the case had planted the contraband upon him. He wished to lead evidence in his defence and examined his mother Bimla Chatri as DW1. Accused Rajesh Kumar stated that he came to Delhi in search of job after his voluntary retirement from Army. He came to Delhi along with his neighbour Baijnath Mehto. Baijnath Mehto was suffering from Chronic Hernia and was advised operation. Therefore, family of Baijnath asked Rajesh Kumar to accompany him to his relatives, who were staying in Delhi. On 11.06.2007, after coming out of Railway Station, he took taxicab, which was already having other passengers for going to Gurgaon. The taxicab was stopped by police near ITO and then all the passengers were taken to Punjabi Bagh Police Station, where they were falsely implicated in this case after obtaining their signatures on blank papers. He wished to lead evidence in his defence and examined Amit Kumar as DW2. FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 3/27 Accused Baijnath stated that he came to Delhi with Rajesh for his medical treatment as he was suffering from Chronic Hernia and cataract in both eyes and he was advised to undergo surgery. He came to Delhi to visit his relative, who was staying in Khanpur, South Delhi. He wished to lead evidence in his defence and examined Shukal Prasad as DW1. Thereafter, the defence evidence was closed and case was fixed for final arguments.
6. I have heard arguments from the learned Additional Public Prosecutor for the State, learned Defence counsels for the accused and perused the record.
7. Ld. Addl. PP submitted that in the present case, there are three recovery witnesses namely PW9 SI K.P. Singh, PW5 Ct. Suman and PW8 Ct. Suresh. All the three recovery witnesses have fully supported and corroborated each other and proved the recovery of ganja from the possession of the accused persons. There is no reason to disbelieve their testimony. All these witnesses have stood through the test of cross examination and fully corroborated each other. The mandatory provisions of Sections 50 NDPS Act have duly been complied with. Samples were taken from the case property and same were sealed at the spot by PW9. Seal after use was handed over to PW8 Suresh. From the spot, rukka was sent to the PS for getting the case registered. All the pullandas and FSL Form were having seal of KPS and seal of GSP was also affixed by PW4 Ins. FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 4/27 Gurmeet Singh in the PS. The case property and FSL Form were duly deposited in the Mal Khana and MHCM made entry in this regard in register no. 19 at serial no. 3522 proved as Ex. PW6/A . On 16.07.2007, sample sealed pullandas along with FSL Form were sent to FSL Rohini through PW8 Ct. Suresh Kumar vide RC No. 107/21. Ld. Addl. PP further submitted that as per FSL result the exhibit was identified to be Indian Hemp Plant (Ganja) . It is prayed that as prosecution has discharged its onus and proved beyond doubt that accused persons were found in possession of contraband, they all be held guilty and convicted.
8. Ld. Defence counsels submitted that the case is false and fabricated against the accused persons and they have been falsely implicated in this case. The onus was upon the prosecution to prove the guilt of the accused, which the prosecution has failed to do. Ld. Counsel submitted that as the severe punishment has been provided and the legislature had considered it a serious offence and therefore, a stricter degree of proof is required as laid down by the Hon'ble Supreme Court in a case titled as (i) Kali Ram vs. State of Himachal Pradesh (1973) 2 SCC 808 and (ii) Mausam Singha Roy & Ors. vs. State of West Bengal 2003 (6) Scale 533. There is no dispute about the legal preposition laid down in the above judgments that in view the gravity of the offence and severe punishment to be awarded to the convict, stricter proof is required for convicting the accused. Ld. Defence counsel submitted that in the present case, according to the FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 5/27 prosecution story, public witnesses were present there. The accused persons were allegedly apprehended from a public place. Vehicular traffic was also there on that place, but no sincere efforts whatsoever were made by the police or the investigating agency to join the public witnesses. This itself creates a doubt about the truthfulness of the story of the prosecution. Nonjoining of the independent witness is fatal to the prosecution case, particularly when, no action was taken against them for nonjoining. It is stated in a routine manner that efforts were made, but nobody agreed. Ld. Counsel submitted that this cannot be relied upon and benefit of the same be given to the accused persons and they be acquitted. Ld. Counsel in support of his arguments relied upon the following judgments :
(i) Pradeep Narayan Modgaonkar & Ors. vs. State of Maharashtra (1995) 4 SCC 255
(ii) Ritesh Chakarvarti vs. State of M.P. (2007) 1 SCC (Crl.) 744
(iii) Prithvi Pal Singh & Munna vs. State 2000 II (AD) (Crl.) DHC 61
(iv) Mahinder Singh @ Sonu vs. State 2009 VIII AD (Delhi) 331
(v) Randhir Singh vs. State of Haryana 2010 (2) JCC (Narcotics) 73
(vi) Amar Singh @ Kabu vs. State of Haryana 2008 (4) RCR (Cr.) 440
9. It is emphasized from time and again that public witnesses be relied upon, but so far as the question of nonjoining of public witness is concerned, I am of the opinion that entire prosecution case cannot be thrown merely on the ground that no public witness was joined, when FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 6/27 otherwise, prosecution story stands proved. The witnesses cannot be condemned merely on the ground that he is from the police force, when otherwise, he is trustworthy, reliable and have stood through the test of crossexamination. Having this opinion, I am fortified by the judgment dated 29.04.2010 of Hon'ble Delhi High Court in Crl. No. 841/2005 in case titled as Vijendra @ Behra Vs. State, P.P. Beeran vs. State of Kerala 2001 (9) SCC 571 and Prayag Upnivas Avas v. Allahabad Vikas Pradhikaran, AIR 2003 SC 2302.
10. Ld. Counsel submitted that the legislature in its own wisdom had laid down certain safe guards to protect the innocent persons from false implication and one of them is filling up of FSL Form and deposit the same with the sample for testing at Forensic Science Laboratory, but in the present case, there is material contradictions in the testimonies of the witnesses with regard to the FSL Form. PW4 Ins. Gurmeet Singh stated that Ct. Suman brought one FSL Form. PW5 Ct. Suman stated that four forms were filled in. PW6 HC Mahinder stated that four FSL Forms were given to him by the SHO. PW7 HC Ranjeet Kumar, second MHCM stated that he has not mentioned in register no. 19 that FSL Form was also sent along with the case property. However, he stated that he sent the FSL Form. PW8 Ct. Suresh stated that FSL Form was also filled in, but no seal was affixed on the FSL form. He also stated that FSL Forms were also seized vide respective seizure memo and in reply to a suggestion, he admitted that he took four FSL Forms to FSL Rohini. Ld. Counsel submitted FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 7/27 that from the testimony of these witnesses, it is clear that witnesses are not consistent as to how many FSL Forms were filled in and whether FSL forms were sent to FSL or not. PW9 SI K.P. Singh stated that only one FSL Form was filled in. Ld. Defence counsel submitted that keeping in view all these contradictions, benefit of the same be given to the accused and they be acquitted.
11. I have gone through the evidence of the witness, who prepared the FSL Form and he is PW9 SI KP Singh. He specifically stated that he filled in only one FSL Form and no copy of FSL Form was prepared. SHO Ins. Gurmeet Singh who was examined as PW4 also stated that he received only one FSL Form, which he deposited in the mal khana. MHCM was examined as PW6, but he for the first time deposed that he received four FSL Forms, but he has deposed against the documentary evidence i.e register no. 19, photocopy of which has been proved as Ex. PW6/A. There is no mention in this entry that four FSL Forms were received. There is mention of only one FSL Form. So far as the contention that there is no mention in register no. 19 that FSL form was also sent to FSL, it is true, but accoring to the evidence, sample pullandas were sent to the FSL along with FSL Forms to the FSL vide RC no. 107/21, photocopy of the same is proved on record as Ex. PW6/C and it is categorically mentioned in the RC that FSL form was also sent to FSL. Defence itself has suggested to PW8 Ct. Suresh, who took the samples to FSL that he also took the FSL Forms to FSL, which he admitted. FSL result was FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 8/27 received and same is Ex. PW1/K, which is admissible under 293 Cr.P.C and in this result, it is specifically mentioned that : "The Parcels four in numbers marked 'SA', 'SB', 'SC' and 'SD' which were sealed and tallied with specimen seal impression forwarded alongwith forwarding letter (FSL FORM)"
From this endorsement on the report of the FSL, it is clear that FSL form was received in the FSL and the seal impression on the parcel tallied with the sample seal and according to this report, these were sealed with the seal of 'GSP' and 'KPS' on all the four parcels. In view of the above discussion, I do not find any merit in the contention of the learned defence counsel and no benefit on this count can be given to the accused.
12. Ld. Counsel for the accused persons submitted that there is no mention in register no. 19 that there was seal of GSP also on the case property recovered from accused Baijnath and Rajesh. I have gone through the document. It is mentioned in entry Ex. PW6/A that there was seal of GSP also on the pullandas except in the entry with respect to Baijnath Mehto, but when the samples were received in FSL, those were found having both the seals of GSP and KPS and in even in the copy of register no. 21 proved as Ex. PW6/C, there is mention of both the seals. When the case property was produced in the Court, at that time also, both the seals of GSP and KPS were found on the case property. Therefore, in my opinion, this argument is of no help to the FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 9/27 accused persons.
13. Learned defence counsel further submitted that in the present case, the receipt was received from the FSL and there is no mention that FSL Form was also received by them along with the case property. The receipt has been proved as Ex. PW7/A. From this, inference can readily be drawn that FSL Form was not sent to FSL Rohini along with the samples. According to the record and the evidence, FSL Form was also not received back along with the exhibits. This itself creates a doubt that FSL Form had not seen the light of the day and never brought on record during the trial, which is fatal to the case of the prosecution, therefore, benefit of the same be given to the accused and they be acquitted.
14. Even otherwise, the FSL form should have been filled in triplicate, but admittedly no spare copy of the same has been prepared, which is in violation of instruction as contain in Delhi High Court Rules and Orders that FSL Form shall be filled in, in triplicate and benefit of the same be also given to the accused persons and they be acquitted.
15. After hearing the arguments on this point and going through the record, I found that when in the FSL result, it is specifically mentioned that FSL form was received and the sample seals found on the FSL Form tallied with the seal found with the seal found on the sample parcels, there is no purpose in arguing that FSL Form was not sent FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 10/27 along with the samples. Similarly, simply because that FSL form was not filled in triplicate, does not help the accused in any manner as by doing that, no prejudice is being caused to the accused, particularly when it has been brought on record that seals were found intact on the samples and tallied with the FSL Form, when these were received in the FSL, Rohini.
16. Ld. Counsel further submitted that according to Section 154 Cr.P.C and Punjab Police Rules 24.1, police must record in DD register about the preparation of the FIR and it must further record in the said DD entry substance of information like names of the accused persons, names of the witnesses, place of recovery, kind and recovery of narcotic etc, which has not been done. The accused persons be given benefit of doubt and therefore, they be acquitted.
17. I do not agree with the learned defence counsel on this point. In a recent judgment dated 09.08.2010 titled as Mohd. Zahid & Another vs. State in a Criminal Appeal No. 205/1997 passed by Hon'ble Mr. Justice Sh. Badar Durrez Ahmed and Sh. V.K. Jain, it is held that failure of police to reproduce the statement of the complainant in the DD as per rule 24.1 of Punjab Police Rules III 1959 does not affect the credibility of the complainant and/or other eyewitnesses. In view of this judgment, merely because the police did not record in DD register about the preparation of the FIR and other things, no benefit FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 11/27 be given to the accused on this account.
18. Learned defence counsel submitted that MHCM has just reproduced the seizure memo as admitted by him. It does not fulfill the requirement of law. Mere reproduction of the contents of the seizure memo does not show that sealed parcels had actually been deposited and by whom and for that purpose, the FSL Form was also handed over to the official and as it is mere reproduction, benefit of the same be given to the accused persons and they be acquitted.
19. I have gone through the seizure memo as well as entry in register no. 19 and found that learned defence counsel has not gone through the document. From the record itself, it is clear that entry in register no. 19 is not reproduction of the seizure memo. He has specifically mentioned in the entry itself that SHO Ins. Gurmeet Singh deposited the case property in the mal khana. Therefore, I do not find any merit in this arguments.
20. Learned counsel submitted that sample sent to FSL office for analysis were not of this case. As per FSL report Ex. PW1/L given by Ms. Anita Chhari, Senior Scientific Assistant, in the sample Ex. SD, it contains dried vegetative material along with the seeds and twigs, whereas according to the rukka and the seizure memo and other documents, thee were leaves only. Witnesses have clearly stated that there were leaves only and no twigs, therefore, it can readily be FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 12/27 said that case property which was sent to FSL was not the same. Inference can therefore, be drawn that samples were tempered with, particularly when it has come in the testimony of PW5 that seal of GPS is found on truck instead of GSP and seal of KPS is not clearly visible.
21. I have considered the testimony of PW5, but so far as seal of GPS is concerned, it is merely a typographical mistake. It is important to note that on the same trunk, on other lock, both the seals of GSP and KPS were found affixed and therefore, there was no possibility to open the trunk. So far as, contents of exhibit 'SD' are concerned, it was for the expert to tell, what were the contents and she had specifically mentioned in her report that it contained the dried vegetative material along with seeds and twigs. When Ms. Anita Chhari appeared in the witnessbox as PW10, in reply to a court question, she had also stated that she was able to identify the flowering and fruiting tops of Female Indian Hemp Plant. Therefore, in my opinion, the statement by the witness, who was not having any expertise and were also not having the facility to examine the exhibits under microscope, saying that there were only leaves, have no effect on the case of the prosecution.
22. Learned counsel has also stated that public analyst had not given in his opinion full and complete data of conducting the test and experiment, therefore, no probative evidentiary value can be attached, FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 13/27 but I do not agree on this point with the learned defence counsel as PW10 had specifically stated that she had examined the material macroscopically and microscopically and thereafter she had given the report. She was also put to the test of crossexamination and at that time also, she had stated that she had examined the exhibit under microscope and only thereafter she gave her report. During cross examination by learned counsel, PW10 Ms. Anita Chhari has specifically stated that she found the flowering and fruiting tops of Female Indian Hemp Plant in the sample. Keeping in view this evidence of the witness and the crossexamination, I do not find any reason to disbelieve the report of the public analyst.
23. Learned defence counsel further submitted that seizure memos in this case were not prepared in the presence of the recovery witnesses. According to PW9, he obtained the signatures of the accused also on the seizure memos Ex. PW5/A and Ex. PW5/B, but these do not bear the signatures of the accused persons Baij Nath and Rajesh. This statement of PW9 itself creates a doubt and it cannot be relied upon. Ld. Counsel in support of his arguments has relied upon the judgment cites as Gopal vs. State of Rajasthan 1988 (3) Crimes
485. I have gone through the said judgment and I found that this judgment is of no help to the accused persons, because in that case the person whose signatures were not there, were witnesses and here it was the accused and having the signatures of the accused on FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 14/27 the seizure memo is not required under law and therefore, I do not find any force in the arguments on this point, particularly when the actual witnesses of the seizure have stood through the test of cross examination and have proved the recovery.
24. Learned defence counsel further submitted that samples were taken on 11.06.2007, but the same were sent to the FSL office on 16.07.2007 i.e after more than one month, which is fatal to the prosecution case. Ld. Counsel in support of his arguments has relied upon the judgments cited as (i) Mohamadali Suleman Varachhia & Ors. vs. The State of Gujrat & Ors. 1996 (Crl. J 3125)
25. I have perused the record. Now, it is a well known fact that FSL is overburdened and samples are sent to the FSL only on receipt of the priority letter. In my opinion, merely because the samples were sent to FSL after a period of one month, is not fatal. Having this opinion, I am fortified by BALBIR KAUR V. STATE OF PUNJAB V (2009) SLT 580, wherein it is held that delay in sending samples itself is not fatal to prosecution case.
26. Learned counsel further submitted that so far as the seal is concerned, there is nothing on record that seal was handed over to Ct. Suresh or no such memo in this respect was prepared and in absence of any such document, the prosecution version is doubtful. According FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 15/27 to PW9, SI K.P. Singh, he handed over the seal to PW8 Ct. Suresh, which he returned to him on the next day. Whereas according to PW 8 Ct. Suresh, he returned the seal to SI K.P. Singh on the same day. Further, PW4 Ins. Gurmeet Singh did not hand over his seal to anybody. In this case, the recovery was made on 11.06.2007 and same was sent to the FSL on 16.07.2007, therefore, possibility that case property was tampered with cannot be ruled out. Benefit of the same be given to the accused and they be acquitted. Ld. Counsel in support of his arguments has relied upon the judgment cited as Chameli Devi vs. State 50 (1993) D.D.T. 439.
27. After going through the record, I found that in document Ex. PW5/C, it is mentioned that seal after use was handed over to Ct. Suresh. It is also in evidence that immediately after sealing the case property, it was sent to police station. There in the Police Station, PW4 Ins. Gurmeet Singh affixed his own seal and deposited it in mal khana. Under these circumstances, SI K.P. Singh was not having any access to the case property thereafter and even if he received his seal on the same day as deposed by PW8, it does not make much difference. So far as the SHO Ins. Gurmeet Singh is concerned, he also immediately after sealing the case property, deposited the case property in the mal khana and was not in possession of the case property. Therefore, if he decided to keep the seal with himself, it does not make a difference, particularly when same was found intact on the case property, when it was produced in the court and also FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 16/27 when, it was received in the FSL, as is evident from the evidence on record and as such I do not find any force in this arguments of the learned defence counsel.
28. Learned counsel also submitted that there was short fall of the sample, when it was received in the FSL. According to the report, the weight of the sample was 2.3 kg, 2.6 kg and 2.1 kg and 2.1 kg with polythene. Learned counsel submitted that this itself creates a doubt about the credibility of the recovery witnesses because according to the prosecution story, sample of 2 kg each was taken out, it cannot be 2.3 kg, 2.6 kg, 2.1 kg and 2.1 kg and benefit of the same be given to the accused and they be acquitted. Learned Counsel in support of his arguments has relied upon the judgment cited as Rajesh Jagdamba Awasthi vs. State of Goa IV (2004) CCR 291 (SC).
29. I found that it is not of much importance keeping in view the fact that it is a small variations and is not of such high magnitude, which throws out the entire proceedings.
30. Ld. Defence counsel submitted that in the present case, according to the story, there was a total recovery of 70 kilogram of Ganja. The onus was upon the prosecution to prove and establish that recovered substance was ganja, but it has not been established. According to the definition of Ganja as provided in The Narcotics Drugs and Psychotropic Substances Act, 1985 in Section 2 (iii (b), ganja, that is, FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 17/27 the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated. Ld. Defence counsel submitted that in the present case, as per the FSL result Ex. PW1/L, the said sample parcel was found containing dried vegetative material along with seeds and twigs. It was also mentioned that said sample was identified to dried Indian Hemp and there is no reference that flowering or fruiting tops of cannabis plant were found as required under the Act. Therefore, it cannot be said that it was ganja. Even otherwise, only the flowering top of cannabis plant constitute ganja and other parts are not included therein. Therefore, entire substance cannot be considered Ganja. The prosecution has failed to establish as to how much, out of the quantity recovered was ganja and the onus was upon the prosecution to prove and establish the same, in which the prosecution has miserably failed.
31. I have gone through the record. FSL result in this case was proved as Ex. PW1/L and the witness PW10 Ms. Anita Chhari, Senior Scientific Asstt. (Biology) has specifically stated in reply to a court question that she examined the samples under microscope and she was able to identify the flowering and fruiting tops of Female Indian Hemp Plant. Even in the crossexamination, she stated that : "......... It is correct that I have not mentioned in my report that when I examined the sample under microscope, I found the flowering and fruiting tops of female Indian hemp plant in the FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 18/27 same. In usual course, we do not report that the sample also contains a flowering and fruiting tops of female Indian hemp plant. "
In another report of FSL Ex. PW1/K, which is per se admissible u/s 293 Cr.P.C, it is specifically mentioned that :
"On Thin Layer Chromatography examination, exhibits 'SA', 'SB', 'SC' & 'SD' were found to contain Tetrahydrocannabinol which is main constituent of Cannabis Plant"
According to the definition of ganja as produced above, seeds and leaves are to be excluded, when not accompanied by the tops, but according to the expert examined as PW10 and as per FSL Results Ex. PW1/L and Ex. PW1/K, it was accompanied by flowering portion of the female plant, therefore, leaves and stems are required to be included. In my opinion, entire substance has to be considered as ganja as in view of the report of FSL also that sample was found to contain Tetrahydrocannabinol, main constituent of Cannabis Plant. In view of the above discussion, I do not find any force in the contention of the learned defence counsel.
32. Ld. Defence counsel further submitted that there is no compliance of Section 57 NDPS Act in the present case. PW1 SI Kartar Singh submitted his report u/s 57 NDPS Act, which was forwarded to the SHO, but no witness from the ACP office was examined to prove this fact, which is fatal to the prosecution case. Benefit of the same be FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 19/27 given to the accused and they be acquitted.
33. In my opinion, compliance of Section 57 NDPS Act is not mandatory and is directory and no benefit on this ground can be extended to the accused, unless the accused shows that some prejudice is caused to him. Having this opinion, I am fortified by the judgments cites as (i) Bahadur Singh v. State of Haryana (SC) 2010(2) R.C.R.(Criminal) 586 and (ii) Gurbax Singh v. State of Haryana JT 2001 (2) SC 330. In the present case the evidence shows that report u/s 57 NDPS Act was prepared and was also submitted before the senior officers. The report is proved on record as Ex. PW1/J. In view of the above, I do not find force in the arguments of learned counsel.
34. Learned defence counsel further submitted that all the witnesses have also contradicted each other making the story of the prosecution highly improbable. According to PW1, he recorded the statement of Ct. Suresh thrice in the police station, whereas according to PW8, his statement was recorded only once. According to PW1, he also recorded the statement of one Tinku son of Sarwan on 12.06.2007 at his residence, which was 2 km away from the spot, whereas according to PW2, his statement was recorded at about 12.00 noon. PW8 stated that PW1 SI KP Singh recorded statement of Ct. Suman in his presence. PW8 Ct. Suresh also stated that Tinku kabari is the person from whom, the weights and weighing scale were brought and according to PW8, statement of Tinku kabari was recorded after his FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 20/27 statement. He also stated that his statement was recorded in the PS, meaning thereby that statement of Tinku was also recorded in the PS. I have perused the record. In my opinion, these contradictions are of minor nature as to where the statement was recorded either in the PS or the spot or statement was recorded once or thrice, but the main proceeding is recovery of contraband from the accused persons, on which all the witnesses are consistent.
35. Ld. Counsel further submitted that there is contradiction as to how Ct. Suresh brought the weights and scale. According to PW2, Ct. Suresh came to him on twowheeler scooter and took the weights and weighing scale, but according to the other witnesses, Ct. Suresh went on foot for taking the weighing scale and weights and Ct. Suresh himself stated that he went to rehari of junk vendor on foot and brought the weights and the scale. Ld. Counsel submitted that there are also contradictions as to at what time, Ct. Suresh went and at what time, he brought the weights and weighing scale. According to PW8 Ct. Suresh himself, he went at 11.00 am and returned at 11.30 am, according to PW5 Ct. Suman, Ct. Suresh was sent at 11.00 am and he returned with weights and scale at about 12.30 pm. According to PW9, Ct. Suresh went at about 11.00 am and he returned after 10.15 minutes. PW2 Tinku stated that at 11.00 am, one constable came to him to take weighing scale and weights, which were returned to him at about 2.00 pm. Ld. Counsel submitted that these contradictions are fatal to the prosecution case and benefit of FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 21/27 the same be given to the accused persons and they be acquitted.
36. I have gone through the record and I found that there are no major contradictions even in the time given by the different witnesses. There is a variation of only 15 to 20 minutes, which is a minor contradiction, which do not go to the root of the case. So far as the issue as to whether Ct. Suresh went on foot or on twowheeler scooter also does not make much difference as the witnesses otherwise are consistent that it was Ct. Suresh, who brought the scale and weights.
37. Ld. Counsel further submitted that there is also contradiction as to putting of FIR number on the case property and pullandas. PW8 Ct. Suresh submitted that FIR was not written by SI K.P. Singh on the boxes and the pullandas, again said, FIR number was also written by PW9 SI K.P. Singh, but PW9 stated that he did not write the FIR number and it was PW4, who stated that he wrote the FIR number. Keeping in view the statement of other two witnesses, out of which, one is present and prepared those pullandas and then went to the PS and deposited the same, I do not find any major contradiction on this aspect, particularly when PW8 was himself doubtful as at one time, he stated that FIR number was not written by SI K.P. Singh, but at the same breath, he stated that he was written by SI K.P. Singh. In my opinion, much importance can not be attached to the statement of PW8 on this aspect as he was not sure about this fact. FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 22/27
38. In the present case, after hearing the arguments and going through the record, I found that recovery of ganja from the possession of accused persons have been proved and all the recovery witnesses are consistent about the recovery. The mandatory provisions of Section 50 NDPS Act have been complied with . All the recovery witnesses have stood through the test of crossexamination and proved the recovery of contraband from the possession of the accused persons. FIR result also proves that the exhibits of the case property was ganja. The defence is not able to breach the veracity or cause any dent in the testimonies of the witnesses. There is no reason to disbelieve the testimony of three recovery witnesses particularly when there is nothing on record to show that they have any reason to falsely implicate or depose against the accused. I am therefore, of the considered opinion that prosecution has been able to prove that accused persons were found in possession of contraband, I therefore hold guilty and convict all the accused persons for the offence punishable U/s 20 NDPS Act.
Announced in open Court
on today i.e. 13.01.2011 (V.K. BANSAL)
ADDL. SESSION JUDGE :DELHI
FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 23/27
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI S.C. No. 150/07 FIR no. 419/07 PS Punjabi Bagh U/s 20/61/85 NDPS Act State Vs. 1. Baijnath Mehto S/o Late Sh. Sumer Mehto
2. Rajesh Kumar S/o Sh. Prem Bahadur
3. Birju Chhetri S/o Sh. Bharat Chhetri ORDER ON SENTENCE : 24.01.2011 Present : Ld. Addl. PP for the State.
Three convicts produced from J.C, with counsels Arguments heard on the point of sentence. Record perused. Learned counsel for the convict Birju Chhatri submitted that he is of young age. He is not a previous convict having no previous criminal record. He is married having wife and aged parents. He is the sole bread earner of his family. He has already remained in custody for about three years seven months. It is prayed that a lenient view may kindly be taken.
FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 24/27 Learned counsel for the convict Rajesh submitted that he is also not a previous convict having no previous criminal record. He is married having three children. He is the sole bread earner of his family. Quantity recovered from him was not commercial. He has already remained in custody for about two months and eight days and during trial, he regularly appeared before this Hon'ble Court. It is prayed that a lenient view may kindly be taken.
Learned counsel for the convict Baijnath submitted that he is also not a previous convict having no previous criminal record. He is married having wife and three children. He is a poor person. He is the sole bread earner of his family. Quantity recovered from him was not commercial. He has already remained in custody for about one months and twelve days. He is also suffering from Hernia and his one eye has been operated upon for cataract. Learned counsel in support of their arguments relied upon the judgments cited as (1) Basir vs. State of Kerala 2004 Crl. L.J. 1418 and (ii) Sonu @ Kane vs. State 2007 (2) JCC
86. It is prayed that a lenient view may kindly be taken.
Ld. Addl. PP submitted that convicts were found in possession of 70 kg ganja. Offence of drugs is not against a person, but it is against the entire nation. It affects not only that fellow, but the entire generation and such convict shall not be dealt with leniency. Ld. Addl.PP further submitted that so far as the issue of commercial quantity is concerned, the quantity of contraband recovered from convict Birju Chhetri was clearly more than the commercial quantity. He further submitted that so FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 25/27 far the arguments that commercial quantity will be more than the quantity referred in the notification, is concerned, that is not a right interpretation. In the notification, the legislature in its own wisdom has clearly specified that quantity referred in column no. 6 will be treated as commercial quantity. It is not mentioned in the notification that the quantity more than quantity referred in column no. 6 will only be treated as commercial quantity. It is submitted that all the three convicts were found in possession of commercial quantity of contraband, hence no leniency be shown and prayed that severest punishment be awarded to them.
According to Section 2 (viia) of the Act "Commercial quantity", in relation to narcotics drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the official gazette, but when the notification was issued, in that notification, it was clarified that quantity referred in column no. 6 be treated as commercial quantity. For contraband known as Ganja, the entry in the notification is at serial no. 55 and according to the entry, the quantity of 1000 gram of Ganja be treated as small quantity and 20 kg be treated as commercial quantity. As discussed in the judgment, convicts Rajesh and Baijnath were found in possession of 20 kg of ganja, which according to notification is a commercial quantity. Convict Birju Chhetri was found in possession of 30 kg of ganja, which is also commercial quantity, I, therefore, sentence all the convicts to 10 (ten) years rigorous imprisonment with fine of Rs. 1,00,000/ (Rs. One lac only) for the offence punishable u/s 20 NDPS Act, in default of payment of fine, to FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 26/27 further undergo six months rigorous imprisonment. Benefit of Section 428 Cr.P.C is given to them.
Case property be destroyed after the period for filing the appeal is over or no appeal is preferred. Copy of judgment and copy of order on sentence be given to the convicts free of cost.
File be consigned to Record Room.
(V.K. BANSAL) ADDL. SESSION JUDGE :
ROHINI : DELHI : 24.01.2011 FIR no. 419/07 : PS Punjabi Bagh : State Vs. Baijnath Mehto etc. page no. 27/27