Delhi District Court
State vs Ekaram Ansari on 12 August, 2013
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT
SAKET COURT COMPLEX, NEW DELHI
State Versus Ekaram Ansari
S/o Sh Ahmed Ansari
R/o H. No. 154,
Village Dhoom Nagar
PS Narkatia Ganj
District West Champaran
Bihar
SC No. 25A/10
FIR No. 302/10
U/S: 20 NDPS Act
PS: Govind Puri
Date of institution : 31.10.2010
Date of reserving judgment : 30.07.2013
Date of pronouncement : 12.08.2013
Decision : Convicted
J U D G M E N T
1. This case pertains to a seizure of 4 kg of charas effected from the possession of the accused on 05.09.2010 at about 4.45 PM at Baba Fateh Singh Marg, Near Petrol Pump, Govind Puri, New Delhi, within the jurisdiction of PS Govind Puri.
2. The case of the prosecution, in brief, is that the IO/PW4 SI Balbir Singh, PW2 HC Ram Kishore and PW6 Ct. Ramkesh of the above PS were on the duties of patrolling and detection of crime in the area of the PS SC No. 25A/10 State Vs. Ekaram Ansari 2 on the above date when at about 4.00 PM, a secret informer had informed that one boy, who is involved in the business of supply of charas, will come on that day at about 4.45 PM from the petrol pump, Baba Fateh Singh Marg side and will go towards slum quarters DDA, Kalkaji and he can be apprehended and the charas can be recovered on raid.
3. The IO/PW4 had communicated the above information to his senior officers and the said information was also recorded at the PS vide DD No. 17A Ex. PW1/C and thereafter a raiding team consisting of the above police officials was constituted and they all, alongwith the secret informer, had reached at the spot of information at around 04:15 PM. The IO/PW4 had also requested some passersby to join the raid, but none of them had agreed to join the raid and the members of the raiding team had started waiting for the arrival of the accused.
4. It is alleged that at about 4.45 PM, the secret informer had pointed out a boy coming from the side of Maa Anandmai Marg to be the same boy who was to bring charas and the above boy was stopped and on enquiry his identity was revealed as the accused Ekaram Ansari of this case. The accused was told about the above information and also that his search was required to be conducted in pursuance of the above information and if he required, he can be searched in the presence of a SC No. 25A/10 State Vs. Ekaram Ansari 3 Gazetted Officer or a Magistrate and he was also offered the search of the police party, but the accused had refused for the same.
5. The IO/PW4 had then served a written notice U/s 50 of the NDPS Act Ex. PW2/D upon the accused with regard to the above, but in reply to the above notice, which was recorded by the IO/PW4 himself on the above notice itself on the request of the accused, the accused had refused for the same. Thereafter, the IO/PW4 had checked the black colour cloth bag which was hanging on the left shoulder of the accused and it was found to contain 4 packets wrapped with yellow colour tapes. When the tapes and the white colour polythene contained thereunder were removed, the above packets were found to contain some pencil type sticks of a substance, which from its smell and appearance etc was identified as charas. The IO/PW4 had taken out 2 samples of 100 gm of charas out of the above 4 packets and two separate cloth parcels thereof were prepared and the remaining charas was also repacked in the same cloth bag and a separate cloth parcel thereof was also prepared. The sample parcels were marked as Ex. 1 and 2 and the parcel of the remaining charas was marked as Ex. 3 and the above parcels were sealed with the seals of BS. Form FSL was also filled by the IO at the spot and same seal affixed thereon and the above three sealed parcels as well as the FSL form were taken into possession vide a seizure memo Ex. PW2/A. SC No. 25A/10 State Vs. Ekaram Ansari 4
6. In the meanwhile, the SHO/PW9 Inspector Veer Singh had also reached at the spot and the IO/PW4 had handed over the above sealed parcels, FSL form and a copy of the seizure memo to the SHO, who had affixed his seals of VS on the parcels and FSL form and had then left the spot with the above parcels and documents, after making some inquiries at the spot, and had deposited the same in the malkhana of the PS. Thereafter, the IO/PW4 had prepared a rukka Ex. PW4/A and had entrusted the same to PW6 Ct. Ramkesh and sent him to PS for registration of this case and on the basis of the above rukka, the FIR Ex. PW1/A was registered.
7. It is also alleged that further investigation of this case was assigned to PW8 ASI Hari Ram, who had reached at the spot, prepared the site plan Ex. PW4/C on the pointing out of the first IO, arrested the accused vide memo Ex. PW2/B, conducted his personal search vide memo Ex. PW2/C and also recorded his disclosure statement Ex. PW2/E. Both the above said samples were subsequently sent to FSL, Rohini for testing and pending the receipt of the FSL result, after recording the statements of the witnesses and completing some other formalities of investigation, a charge sheet for commission of the offence punishable U/s 20 of the NDPS Act was ultimately prepared and filed against the accused in this court.
8. The charge sheet was filed in the court of Ld Duty MM on 31.10.2010 and since the matter pertained to SC No. 25A/10 State Vs. Ekaram Ansari 5 NDPS Act and was required to be tried by a Special Court, the case was committed/sent for trial to the court by the Ld MM concerned vide order dated 15.11.2010, with observations that the above charge sheet ought to have been filed in this Special Court directly.
9. The charge sheet was received in this court on assignment on 23.11.2010 and was directed to be registered. A prime facie case for commission of the offence punishable U/s 20(b)(ii)(c) of the NDPS Act was also found to be made out against the accused for possessing a commercial quantity of charas and hence, a charge for the above said offence was also framed against him on 27.01.2011.
10. The prosecution in support of its case has examined on record total 9 witnesses and their names and the purpose of examination is being stated herein below:-
11. PW1 HC Jaipal Singh is the Duty Officer who had got recorded the FIR of this case Ex. PW1/A, through the computer operator of the PS, and had also made the endorsement Ex. PW1/B on the original rukka in this regard. He had also recorded the above DD No. 17A Ex. PW1/C of this case.
12. PW2 HC Ram Kishore, PW4/IO SI Balbir Singh and PW6 Ct. Ramkesh all the members of the raiding police team which had apprehended the accused from the above SC No. 25A/10 State Vs. Ekaram Ansari 6 place and with the above contraband substance. They all have broadly deposed on the above lines of the prosecution story and have also proved on record various documents of this case, identified the accused as well as the case property.
13. PW3 Sh. Mahipal Singh, ACP Ambedkar Nagar was also looking after the work of ACP Kalkaji on his transfer and on 05.09.2010, he had received the above telephonic informations regarding the receipt of the secret information as well as the apprehension of the accused with contraband substance. On 06.09.2010, one information U/s 42 NDPS Act vide DD No. 17A Ex. PW3/A was received in his office and besides the same, two other informations U/s 57 of the NDPS Act Ex. PW3/B and PW3/C sent by both the IOs of this case were also received in his office and he had perused all the above informations and had brought on record a copy of the relevant entries number 3630, 3631 and 3632 made in the dak register of his office regarding the receipt of the above informations as Ex. PW3/D (colly).
14. PW5 HC Manoj is the MHC(M) of the PS at the relevant time and he has deposed regarding the deposit of the above three sealed parcels of case property and samples in the malkhana on 05.09.2010, the deposit of personal search articles of the accused in the malkhana on the same day and the sending of the sealed sample parcels to FSL on 22.09.2010 for testing. He has also SC No. 25A/10 State Vs. Ekaram Ansari 7 proved on record a copy of the relevant entry no. 614 of the register no. 19 regarding the deposit and movement of the above parcels and articles etc. Ex. PW5/C, a copy of the road certificate no. 74/21, vide which the sample parcels were sent to FSL, as Ex. PW5/A and the original acknowledgment given by the FSL authorities as Ex. PW5/B.
15. PW7 Ct. Sanjeev Kumar had only taken the sealed sample parcels of this case to FSL on 22.09.2010 vide the above road certificate Ex. PW5/A and had deposited there vide acknowledgment Ex. PW5/B.
16. PW8 ASI Hari Singh is the second IO of this case and on being assigned the investigation of this case, he had reached at the spot and has almost deposed on the above lines of the prosecution story regarding the arrest etc of the accused and has proved on record the arrest memo of the accused as Ex. PW2/B, personal search memo Ex. PW2/C, disclosure statement of the accused Ex. PW2/E and the site plan Ex. PW4/C prepared by him at the spot. He has also subsequently informed to one friend of the accused about his arrest and had sent the report U/s 57 of the NDPS Act Ex. PW3/C to his senior officers and the sample parcels to FSL. He has also identified the accused and the personal search articles of the accused.
17. PW9 Inspector Veer Singh was the SHO of the above PS at the relevant time and he has also broadly deposed on the above lines of the prosecution story SC No. 25A/10 State Vs. Ekaram Ansari 8 regarding the conveying of the above secret information to him by the IO/PW4 and his directions for constitution of raiding team, the information given to him about the apprehension of the accused with the above contraband substance, his subsequent visit at the spot and the deposit of the above parcels etc in the malkhana and the forwarding of the above informations U/s 42 and 57 of the NDPS Act to the ACP concerned.
18. After the conclusion of the prosecution evidence, all the incriminating evidence brought on record by the prosecution was put to the accused in his statement recorded U/s 313 Cr.P.C. and the same was denied by him to be incorrect. He has claimed this case to be false and himself to have been falsely implicated in this case while alleging that no charas was recovered from his possession and his signatures were obtained by the police on a number of blank papers and against his wishes. It is his case that he had come to Delhi for getting visa for Canada and in this connection he was going by a local bus to see a travel agent in the area of Okhla on 05.09.2010 at about 10.00 AM when a quarrel between him and some other persons had taken place in the bus and he was beaten by the above persons and he had also thrashed the said persons. However, subsequently, he was pulled down from the bus by the above persons, which were found to be police personnel, and he was taken to PS by them and falsely implicated in this case. Though initially he had chosen to lead evidence in his SC No. 25A/10 State Vs. Ekaram Ansari 9 defence, but no defence evidence was led by him on record.
19. I have heard the arguments advanced by Ms. Alka Goel, Ld Addl PP for the State and Sh. Sanjeev Kumar and Sh. S. K. Santoshi, Ld counsels for the accused and have further gone through the evidence led on record and the case file.
20. The first argument of Ld defence counsels is that the prosecution story on the face of it is not believable as it is a stereotyped story of apprehension of a person on the basis of secret information and they have also argued that the falseness of the above story can be judged from the fact that during the entire investigation conducted by the IO/PW4, it could not be ascertained as to from where the accused had procured the above contraband substance and to whom he was to deliver the same. They have also pointed out towards the disclosure statement Ex. PW2/E of the accused wherein the accused is alleged to have disclosed that the above contraband substance was given to him by one Wasim who had met him near Virat Cinema, Ambedkar Nagar and he had allegedly given the above bag containing the charas to the accused for delivering the same to someone, as per his instructions, but the details of the above Wasim and the other person could not be collected during the investigation. They have also argued that it is not believable that the above Wasim could have handed over SC No. 25A/10 State Vs. Ekaram Ansari 10 the above bag to the accused without previously knowing him and it also does not sound logical that the above same Wasim was to meet him near the above petrol pump of Govind Puri, i.e. the spot of incident, for telling him the details of the person to whom the above contraband substance was to be recovered.
21. In this regard, it is observed that as per law the above disclosure statement Ex. PW2/E is not admissible in evidence and hence it cannot be read in evidence for any purposes and for any of the parties, i.e. the prosecution or the defence, as no further recovery of any contraband substance or discovery of new facts was effected in pursuance thereof. Moreover, the submissions or the disclosures recorded in a disclosure statement are always of an accused and the accused is always at liberty to make even incorrect disclosures to misguide or deceive the investigating agencies. Hence, the hollowness of such disclosures is not a ground to discard the prosecution story. Only PW6 Ct. Ramkesh was questioned by Ld defence Counsel in his cross examination regarding the whereabouts of the above Wasim and he has duly explained that Wasim could not be traced out as the accused had not told about his complete details. Even otherwise, this case relates to the possession of a contraband substance and the charge framed against the accused is U/s 20(b)(ii)(C) of the NDPS Act for possessing a commercial quantity of charas and hence, the failure in tracing out of the sources of procurement or SC No. 25A/10 State Vs. Ekaram Ansari 11 supply of the above charas are not relevant for determining the above charge.
22. The next contention of Ld defence counsels is that the notice given U/s 50 of the NDPS Act to the accused was only with regard to the search of his person and it was not with regard to the search of his bag and since the accused was not specifically told that the bag carried by him was also required to be searched, there was no occasion for the accused to have exercised his right of getting the above bag searched in the presence of a Gazetted officer or a Magistrate, in terms of the provisions of Section 50 of the NDPS Act. They have also argued that the language of the notice U/s 50 of the NDPS Act Ex. PW2/D suggests as if the accused was only given an option of getting his person searched before the Gazetted Officer or a Magistrate and had he been apprised that his bag was also to be searched, then he would have certainly exercised his above right.
23. However, on perusal of the contents of the above notice Ex. PW2/D, it is found that the above submission being made by Ld defence counsels is without any merits as by the above notice, the IO/PW4 had clearly apprised the accused that they were having an information of his being in possession of charas and for that his search was necessary. The above notice nowhere appears to the court to be suggesting that the search was to be conducted only of the person of the accused and not of SC No. 25A/10 State Vs. Ekaram Ansari 12 his bag.
24. With regard to the provisions of Section 50 of the NDPS Act, it has also been argued by Ld defence counsels that the language of the above notice Ex. PW2/D also suggests that the above option of search before a Gazetted officer or a Magistrate given to the accused was only a facility and not a legal right of the accused as the IO/PW4 had used the word 'Suvidha' in the said notice instead of the word 'Adhikar'. However, in this regard, it is observed that U/s 50 of the NDPS Act, no particular form or contents of a notice to be given to the accused regarding his above right are prescribed and all that is required is that the accused must be made aware of the existence of his above legal right that if he so 'desires' his search can be conducted in the presence of a Gazetted Officer or a Magistrate. The depositions made by the above recovery witnesses on record clearly suggest that the accused was made aware of his above right and his reply/refusal to the same in writing was also recorded on the above notice itself, in the hands of the IO/PW4 and at the request of the accused himself as he had stated that he cannot read or write and he can only sign his name. The signatures in his name are also there on the above notice and the same have been identified by the IO/PW4 himself.
25. Moreover, since the recovery of the above contraband substance in this case has been effected not SC No. 25A/10 State Vs. Ekaram Ansari 13 from the 'person' of the accused, but from the above bag being carried by him, no notice U/s 50 of the NDPS Act was required to be given in this case as the above provisions are not applicable in the instant case. Reference in this regard can be made to the cases of State of H.P. Vs Pawan Kumar 2005 (4) SCC 350, Madan Lal Vs State of H.P. 2003 Crl.L.J 3868 and Ajmer Singh Vs State of Haryana-2010 (2) SCR 785 (Crl. Appeal No. 436/09) etc.
26. The next contention of Ld defence counsels is that no public witness has been joined by the IO/PW4 during the investigation of this case and the testimonies of only police witnesses should not be believed and the accused is entitled to be acquitted on this ground only as the evidence does not even suggest that the IO/PW4 had made any sincere efforts to join the public witnesses. In this regard also, it is well settled now that the case of the prosecution cannot be thrown away or disbelieved simply because of non joining of the public witnesses during the investigation as the public persons are always reluctant to become witnesses in criminal matters and it is also not always possible to find out and join such witnesses.
27. It has been specifically deposed by all the recovery witnesses that some passersby were requested by the IO/PW4 to join the investigation, but they all had refused to join the investigation on different pretexts.
SC No. 25A/10 State Vs. Ekaram Ansari
14
The testimonies of official witnesses cannot be
disbelieved or thrown away merely by reason of their office as the presumption of honesty is as much available to them as may be available to any public witness. Moreover, the secret information regarding the expected arrival of the accused with the contraband substance was received by the IO/PW4 only at around 4.00 PM and the time of arrival of the accused was about 4.45 PM and during this short period, there was hardly any material time available with the IO/PW4 to go in search of the public witnesses residing near the place of apprehension of the accused. On the aspect of non joining of the public witnesses reference can be made to a judgment of own High Court in case of Union of India Vs Victor Namdi Okpo 2010 (4) JCC (Narcotics) 188 wherein their Lordships had held that the non joining of public witnesses by the prosecution is not fatal as the public witnesses are always scared to become a witness in a criminal case and it is very hard to find public witnesses these days. Reference can also be made to a decision of the Hon'ble Supreme Court in case Ajmer Singh-Supra.
28. Reference in this regard can also be made to a recent decision of our own Hon'ble High Court in Crl. Appeal No. 1561/2011 titled Rozy Vijender @ Elizabeth Samuel Vs DRI and Criminal Appeal No. 108/2012 titled Vijender Singh Vs DRI, both decided vide a common judgment dated 08.04.2013, which were filed against the SC No. 25A/10 State Vs. Ekaram Ansari 15 convictions of the above appellants/accused by this court, wherein following observations were made by their lordships:-
"The prosecution associated Deep Chand and Kuldeep Sharma, independent public witnesses at the time of recovery. Their signatures were taken on the panchnama (Ex. PW2/K) and annexures (Ex. PW2/B to Ex. PW2/F). They were cited witnesses in the case. Efforts were made to serve the summons for their appearance before the court. However, the addresses given by them were found fake. Their presence could not be secured during trial. No adverse inference can be drawn against the prosecution for their failure to examine independent panch witnesses. The secret information (Ex. PW1/A) was received on 23.11.2005 around 06.30 PM. A raiding party was organized at about 07.30 PM, the accused were arrested at a Bus stop, outside New Delhi Railway Station at a distance of 3 or 4 KM from the office of the complainant.
Apparently, the officials had no sufficient time to arrange independent public witness before proceeding to the spot. Their anxiety was to intercept the culprits at the earliest. Even then before apprehending the accused, they joined Deep Chand and Kuldeep Sharma who were available at the Railway Station.
They were not acquainted with the officials. There were no time for them to verify and ascertain their identity.
The name and address disclosed by them were believed. No fault can be found on this account with the members of the raiding team. The non-examination of the witnesses, who joined in the SC No. 25A/10 State Vs. Ekaram Ansari 16 investigation per-se is not fatal. It is no rule of law but of prudence that public witnesses should be joined. This is insisted so as to lend authenticity and credibility to the search and the recovery that are effected, it is of course not an absolute rule. Though it is desirable to examine an independent witness, in the absence of any such witness, if the statements of the official witnesses are reliable and when there is no animosity established against them by the accused, their version cannot be doubted or discredited."
29. The next contention of Ld defence counsels is that the prosecution has failed to establish on record that the parcels of the samples and case property of this case had remained intact and were not tampered with at any stage. They had also argued that the evidence led on record also does not suggest that the FSL form was prepared by the IO/PW4 at the spot and deposited with the MHC(M) and further that the same was sent to FSL with the sample parcels and the accused deserves to be acquitted for the above reasons. In this regard, it is observed that the testimonies of three recovery witnesses, i.e. PW2 HC Ram Kishore, PW6 Ct. Ramkesh and the IO/PW4 himself, as well as of PW5/HC Manoj, PW7 Ct. Sanjeev Kumar and PW9/SHO Inspector Veer Singh are relevant on this aspect. All the above three witnesses of recovery have specifically deposed in clear terms that the IO/PW4 SI Balbir Singh had also filled the FSL form at the spot and the seal of BS used by the IO/PW4 SC No. 25A/10 State Vs. Ekaram Ansari 17 in sealing of the above parcels of case property and samples was affixed on the said form. They have further deposed that even the SHO/PW9 Inspector Veer Singh, who had reached at the spot subsequently, had affixed his seal of VS on the above parcels and then the above parcels and FSL form etc were taken into custody by the above Inspector/PW9.
30. The depositions made by PW9/SHO as well as by PW5 HC Manoj/MHC(M) also establish on record that the above sealed parcels of case property and samples were deposited by the SHO/PW9 in the malkhana of the PS on the same day, i.e. 05.06.2009, alongwith the FSL form etc. The above two witnesses also corroborate the testimonies of the recovery witnesses regarding the condition and impression of the seals affixed on the parcels and the FSL form. Though during his cross examination PW5 has stated that in his statement U/s 161 Cr.P.C., he had not stated to the IO/PW4 that the above parcels etc were deposited with him by Inspector Veer Singh, but during the statement of the SHO/PW9 he has also duly proved on record a copy of one DD entry No. 22A dated 05.09.2010 as Ex. PW9/A, which is in his own handwriting and is regarding his arrival back in the PS from the spot and the deposit of the above parcels and FSL form etc in the malkhana, and the complete description of the parcels and form FSL etc is also found recorded in the above DD. There is nothing on record to show that the above DD was fabricated SC No. 25A/10 State Vs. Ekaram Ansari 18 subsequently and the suggestion given by Ld defence counsels to the witness in this regard was specifically denied by him to be incorrect.
31. It is also observed that the MHC(M)/PW5 HC Manoj was not cross examined on behalf of the accused at all and hence, not even a suggestion was given to the above witness that the FSL form was not deposited with the parcels of the case property in the malkhana on the above day or even that the parcels of the case property and samples were tampered with. Moreover, PW5 has also specifically stated on record that so long as the above samples had remained in his custody in the malkhana, the same were not tampered with by anybody. Even no suggestion is found to be given to the SHO/PW9 that the case property was tampered with while it was in his custody or that he had not deposited the above parcels of the case property and FSL form in the malkhana. Further, the contents of the road certificate Ex. PW5/A, the acknowledgement Ex. PW5/B and the depositions made by PW7 also rule out any tampering with the parcels of the samples at the time of their deposit in the FSL and even the FSL report Ex. PW4/D shows that the sample parcels were received in the FSL in intact condition. Hence, the oral as well as the documentary evidence led on record by the prosecution rules out any possibility or inference of tampering of the above parcels at any stage. The judgments in cases Habib Vs. State 1996 JCC 25, Mohd. Ibrahim Vs. State of NCT of Delhi 2013 (1) JCC SC No. 25A/10 State Vs. Ekaram Ansari 19 (Narcotics) 1 and Safiullah Vs. State (Delhi Admn.) 1993 JCC 33 being relied upon on this aspect have been given in different contexts and in the above cases, there were also certain other factors responsible for leading towards the acquittal of the accused.
32. As discussed above, there are consistent and corroborative depositions made by all the above three recovery witnesses regarding the apprehension of the accused from the above spot and with the above bag containing the contraband substance. Though the IO/PW4 was confronted during his cross examination regarding the non mentioning of Maa Anandmai Marg in the rukka, but the above confrontation is minor in nature. Though it has also been admitted by the IO/PW4 that he had not made any attempt to join the officials of the petrol pump situated nearby, but the same is also not felt necessary. Nothing material could be extracted out from the above witnesses to disprove the prosecution story regarding the apprehension of the accused from the above place or with the above contraband substance. Though the case of the accused is that the above charas was planted upon him and some suggestions in this regard have also been given to the witnesses and the accused himself has also made some submissions in this regard during the course of recording of his statement U/s 313 Cr.P.C., but his above defence is very vague and has remained unsubstantiated.
SC No. 25A/10 State Vs. Ekaram Ansari 20
33. It is observed from the suggestions given to the recovery witnesses that the apprehension of the accused from the above place is not in dispute and stands admitted as it was suggested to PW2 HC Ram Kishore that the accused was in possession of Rs. 10,000/- at the time of his apprehension and part of the above amount was misappropriated by the police officials. It was also suggested to him that at the relevant time, the accused was going to his travel agent office in connection with formalities for getting visa for Canada, but both the above suggestions were denied by the witness to be wrong. It was nowhere suggested to PW2 or any of the other recovery witnesses that the accused was not apprehended from the above place by the members of the raiding team and rather the suggestion given to the IO/PW4 to the effect that all the members of the raiding team had remained present at the spot till the conclusion of the investigation also suggests that the accused is admitting his apprehension from the above place and is not challenging the same.
34. Though during the course of recording of his statement U/s 313 Cr.P.C., the accused has also submitted that he was falsely implicated in this case because of some scuffle which had taken place between him and some other persons, who were subsequently found to be police officials, but this story being put forward by the accused in his statement appears to be an after-thought as no such suggestions have been given to any of the SC No. 25A/10 State Vs. Ekaram Ansari 21 prosecution witnesses during the trial. The accused is a resident of District West Champaran, Bihar and even no local address of the accused of Delhi is on record. It is also not the case of the defence that he was known to any member of the raiding police team, what to say of having any enemical terms with any of them. Hence, the plea or possibility of false implication of the accused is ruled out because of the above reason and also because of one other reason that the accused is stated to have been found in possession of 4 kg of charas, which is a huge commercial quantity of the above contraband substance as under the provisions of the NDPS Act a quantity of 1 kg charas only is prescribed to be a commercial quantity.
35. Though some minor contradictions and discrepancies have come on record during the statements of the prosecution witnesses regarding the different timings connected with the investigation of the case and certain other aspects, but the above contradictions or discrepancies are found to be immaterial and do not go to the root of the case. The oral evidence led on record is duly corroborated by the above documents proved during the statements of the above witnesses. The FSL report Ex. PW4/D confirms that the two samples taken out from the above charas and tested in the FSL were found positive for the presence of charas as the same had given positive results for Cannabinoids including Tetrahydrocannabinol. Though the provisions SC No. 25A/10 State Vs. Ekaram Ansari 22 of Section 57 NDPS Act are not mandatory and are only directory in nature, but the compliance of the above said provisions is also proved on record as not only one, but two different reports U/s 57 of the NDPS Act Ex. PW3/B and PW3/C respectively were sent by both the above IOs within the prescribed time and the receipt of the above informations in the office of the concerned ACP is also proved from the depositions made by the ACP and the contents of the diary entry Ex. PW3/D collectively.
36. In view of the above discussion, it is held that the prosecution has successfully brought home the guilt of the accused for commission of the offence punishable U/S 20(b)(ii)(C) of the NDPS Act, for which charge was framed against him. He is, accordingly, held guilty and convicted for the said offence.
Let he be now heard on the quantum of sentence.
Announced in the open
court on 12.08.2013 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South District
Saket Court Complex
New Delhi
SC No. 25A/10 State Vs. Ekaram Ansari
23
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH DISTRICT SAKET COURT COMPLEX, NEW DELHI State Versus Ekaram Ansari S/o Sh Ahmed Ansari R/o H. No. 154, Village Dhoom Nagar PS Narkatia Ganj District West Champaran Bihar SC No. 25A/10 FIR No. 302/10 U/S: 20 NDPS Act PS: Govind Puri ORDER ON SENTENCE Present: Ms. Alka Goel, Ld Addl PP for the State.
Accused/convict in J/C with Sh. S. K. Santoshi, Advocate.
After having convicted the accused for the offence punishable U/S 20 (b)(ii)(C) of the NDPS Act vide my judgment dated 12.08.2013, arguments have been heard today as advanced by Ms. Alka Goel, Ld Addl PP for the State and Sh. S. K. Santoshi, Ld counsel for the convict on the point of sentence to be awarded to the convict. The submissions made by the convict herself have also been heard and considered.
2. It is submitted on behalf of the convict that he is aged only 33 years and is having the liability to maintain his wife and three minor children. It is also SC No. 25A/10 State Vs. Ekaram Ansari 24 submitted that there is no previous involvement of the convict in any other criminal matter.
3. The convict has been held guilty for possessing a commercial quantity of charas, which offence is punishable U/s 20 (b)(ii)(C) of the NDPS Act, but there is nothing to show on record that he himself was running any drug trafficking racket and the possibility may be that he was acting only as a carrier of the contraband substance. Even according to the case of the prosecution and the disclosures made by the convict during the investigation, the above contraband substance was handed over to him by some other person and was to be delivered further by the convict according to the directions of the said person. Hence, the ends of justice will be met if the convict is awarded the minimum sentence prescribed for the said offence.
4. Therefore, the convict is awarded rigorous imprisonment for a period of 10 years and a fine of Rs 1 lac for the abovesaid offence. In case of non payment of fine he shall further undergo simple imprisonment for a period of three months. The period of custody already undergone by him is allowed to be set off in terms of the provisions of Section 428 Cr.P.C. Let him to undergo the above sentences as per law. Fine has not been paid.
5. A copy of the judgment and the order on sentence be supplied to the convict free of cost.
SC No. 25A/10 State Vs. Ekaram Ansari
25
6. The case property be also confiscated and
disposed of as per law, after the expiry of the period of limitation for filing of the appeal or subject to the outcome of any appeal to be filed against this judgment and the order on sentence and the orders of the appellate court, as the case may be.
Announced in the open
court on 17.08.2013 (M.K.NAGPAL)
ASJ/Special Judge NDPS
South District
Saket Court Complex
New Delhi
SC No. 25A/10 State Vs. Ekaram Ansari