Delhi District Court
Ncb vs . Guddu Ali on 4 July, 2009
NCB Vs. Guddu Ali
IN THE COURT OF SH. SANJIV JAIN
SPECIAL JUDGE: NDPS: PATIALA HOUSE COURTS, NEW DELHI
Date of Institution:18/8/2004
Judgment reserved on:04/07/2009
Date of pronouncement: 04/07/2009
SC No. 112/08
ID No. 02403R0295772004
NCB vs. Guddu Ali
U/s. 21 NDPS Act
NCB Vs. 1. Guddu Ali
S/o Sh. Late Shri Kallu
R/o. Gouthia PS Faridpur
Distt. Brielly, Uttar Pradesh
J U D G M E N T
1. Prosecution case in brief is that on 12/3/2009 at about 9:30 a.m. Sh. H.K. Pandey an Intelligence Officer in Narcotics Control Bureau received an information that one person namely Guddu Ali would deliver 1½ kg. heroin to one of his customer in front of or near Sulabh Sauchalaya, A block, Tigri, Delhi. The information was reduced in writing and forwarded to the Suptd. Sh. P.L. Verma who 1 NCB Vs. Guddu Ali issued a search authorisation in favour of Sh. Mangal Dass. After receiving authorisation Sh. Mangal Dass collected seal bearing no. DZU3 from Sh. P.L. Verma and proceeded to the place of information with other members. He joined two public witnesses namely Sh. Ami Chand and Shri Bable in the raid. At about 1200 hours accused Guddu Ali stood in front of Sulabh Sauchalaya. Raiding party encircled him. He was explained about the information. The search authorisation letter was shown to him. He was informed of his legal right of calling a gazetted officer or a Magistrate before his search but he refused. A notice u/s 50 of NDPS Act was given on which the accused recorded his refusal. Raiding party also offered their personal search to the accused and punch witnesses which they declined. Search was conducted. From his right hand, one black colour polythene bag was recovered which had double white polythene packet filled with brown colour powder weighing 1 kg. A small quantity was tested with the field testing kit which gave positive 2 NCB Vs. Guddu Ali test for heroin. Two samples of 5gm. each were drawn from the packet, kept in two small polythene bags and sealed with the seal of DZU 3. Rest of the heroin was kept in the same manner as it was recovered. Personal search of the accused was conducted. Test memo form in triplicate was prepared. Panchnama was prepared at the spot. Summon u/s 67 NDPS Act was served on the accused. He gave his statement. Search execution report on the back of search authorisation, report of search and seizure us 57 NDPS Act were given to the senior officials. Case property and test memo forms were deposited in malkhana. Accused was arrested. The exhibits were sent to CRCL along with test memos and forwarding letter through Jagdish Chand Havaldar for chemical analysis. As per the report, the exhibits were found to contain diacetylmorphine (heroin and Morphine) 1.0 and 0.27%. Separate summons were issued to the panch witnesses Sh. Bable and Sh. Amichand u/s 67 of NDPS Act and their statements were recorded. After investigation, he was sent 3 NCB Vs. Guddu Ali for trial for offence punishable u/s 21 (c) of the NDPS Act.
2. On the appearance of accused, after complying with the requirements contemplated u/s. 207 Cr.P.C. and hearing arguments, prime facie case was made out under section 21 (c) NDPS Act against the accused. The charge was framed. Accused pleaded not guilty and claimed trial.
3. To substantiate its allegations against the accused, prosecution examined as many as eight witnesses.
PW1 P.K. Aggarwal was the Assistant chemical examiner, CRCL. He was allotted the sealed samples by K.C. Aggarwal, Chemical Examiner which kept it in intact condition in the strong room. On 19/5/2004 he conducted the chemical analysis and found the exhibits containing diacetylmorphine (heroin) 1.0% and morphine 0.27%. He proved test report ExPW1/A. PW2 Sh. Satinder Kumar recorded the statement of PW Ami Chand ExPW2/B. 4 NCB Vs. Guddu Ali PW3 Jagdish Chand had taken the sample to CRCL with test memo forms and forwarding letter ExPW3/A. He proved the copy of receipt ExPW3/B. He stated that so long as the case property remained in his custody, it remained intact and none tampered with it.
PW4 Sh. Mangal Das was IO of the case. He reproduced the prosecution story. He proved search authorisation warrant ExPW4/A, notice u/s 50 NDPS Act to accused ExPW4/B, Panchnama ExPW4/C, ticket recovered from the accused ExPW4/D, report u/s 57 NDPS Act ExPW4/E, statement of PW Babley ExPW4/F, complaint ExPW4/G, list of documents ExPW4/H, execution report on search authorisation ExPW4/J and the case property.
PW5 Sh. H.K. Pandey proved secret information ExPW5/A, test memos in triplicate ExPW5/B, notice u/s 67 NDPS Act issued to Guddu Ali ExPW5/C, statement of accused ExPW5/D, arrest memo ExPW5/E, personal search ExPW5/F, summons to PW SH. Babley ExPW5/G, report u/s 57 NDPS Act ExPW5/H. He stated that property 5 NCB Vs. Guddu Ali was seized in his presence by Sh. Mangal Dass. He corroborated the version of PW4 on all material points.
PW6 Sh. Jagmohan Khati stated that statement of public witness Babley was recorded in his presence by the IO Mangal Dass.
PW7 Sh. P.L. Verma was Superintendent in NCB office. He proved entry of the seal in the register ExPW7/A, entries made in malkhana register ExPW7/B. PW8 Sh. Sehdev Kumar is Assistant Chemical Examiner. He received the samples from Sh. Jagdish Chand.
4. Statement of accused U/s 313 Cr.P.C was recorded, wherein he denied the prosecution case and claimed himself to be innocent and falsely implicated in this case. He did not examine any witness in his defence.
5. I have heard the arguments advanced by Spl. PP for NCB Sh. Narender Singh and Ld. Counsel Sh. Sameer Chandra Amicus Curie for the accused and have gone through the material placed on 6 NCB Vs. Guddu Ali record.
6. Ld. counsel for the accused contended that as per the panchnama, sample of 5 grams was drawn but from the report ExPW1/A submitted by PW1 the sample allegedly sent to CFSL was 4.7 grams. Ld. counsel further contended that no public witness was examined even the malkhana moharrar was not examined to rule out the possibility of tempering with the case property Ld. counsel further contended that the seizure memo was prepared in English though it is evident from the testimony of the prosecution witnesses that the accused and the public witnesses did not know English. Ld. Counsel submitted that due compliance u/s 50 NDPS was not made as the particulars were filled on the proforma and there is no evidence on record to show whom the seal was entrusted after use. Ld. counsel further contended that prosecution did not examine the chemical examiner and in the absence of his testimony, the report cannot be read in evidence.
7 NCB Vs. Guddu Ali
7. Ld. Special P.P. Sh. Narender Singh on the contrary submitted that the sample allegedly taken from the case property was weighed using the scale and it was not a physical balance so chances of small variation in weight is always possible. The prosecution has examined Sh. P.L. Verma who was the malkhana incharge and in the office of Narcotics Control Bureau there is no post of Malkhana Moharrar. Ld. Special P.P. further submitted that after the seizure, memo in question was explained to the accused and the public witness in vernacular which is also apparent from its perusal and due compliance u/s 50 NDPS Act was made by explaining the accused of his right of calling the gazetted officer and magistrate before his search. Ld. Special P.P. further submitted that u/s 293 Cr.P.C. the report of chemical examiner is admissible in evidence.
8. I have considered the rival contentions .
9. In the instant case PW5 H.K. Pandey had received the secret information about the accused Guddu Ali that he would come 8 NCB Vs. Guddu Ali near Sulabh Sauchalaya A block Tigri to deliver heroin to someone. He reduced the secret information in writing and proved it as ExPW5/A. He brought this information to the notice of PW7 Sh. P.L. Verma who after getting satisfied instructed PW4 to take necessary action. PW7 in his testimony stated that the intelligence report was put up before him which he discussed with PW Mangal Dass and gave directions to take necessary actions on the report ExPW5/A. He stated that he also issued a search authorisation in his name vide ExPW4/A after issuing a seal of NCB DZU no. 3. for which he made entry in the register vide ExPW7/A. PW4 Sh.Mangal Dass corroborated this fact and stated that after taking search authorisation and seal, he along with other team members left for the place and joined two independent witness Ami Chand and Bable whom he told about the information and search authorisation. Thus, due compliance u/s 42 NDPS act was duly made.
10. PW4 stated that after reaching at the place, they mounted 9 NCB Vs. Guddu Ali the surveillance in the area. After sometime they saw a person standing in front of Sulabh Sauchalaya whom they encircled who on interrogation disclosed his name as Guddu Ali. He stated that they had asked the accused that they have to take his search and told him that he has a legal right to call a Magistrate and Gazetted officer and they also explained their meaning but he denied. He stated that he issued a notice u/s 50 NDPS Act which bears the signatures of both the panch witnesses on which the accused recorded his refusal . He proved the notice ExPW4/B. PW4 further stated that from the search of the black colour polythene bag in his possession, one double white polythene was recovered which had some brown colour powder weighing 1 kg. out of which he drew two samples of 5 grams each and all of them were sealed with the seal of NCB DZU3 using the papers slips. He also stated that in his presence. PW 5 prepared the test memo in triplicate for which a detailed panchnama was prepared which was 10 NCB Vs. Guddu Ali read over to the accused as well as the panch witnesses in vernacular. He stated that the facsimile of the seal used for the purpose of sealing the sample and the case property were also appended on the panchnama and after that he submitted his execution report on the search authorisation.
11. PW5 duly corroborated the testimony of PW4 on all material points. He stated that from the personal search of Guddu Ali a ticket of U.P. roadways was recovered and this fact was also narrated by PW4 in his testimony. The accused failed to account of for its possession which on testing gave positive test of heroin.
12. PW4 stated that he prepared a report u/s 57 NDPS Act and also recorded the statement of witness Ami Chand ExPW2/B as well as of Bable ExPW4/F at their dictation which was also read over to them before obtaining their signatures. He stated that PW Jagmohan Khati had signed on the statement which was recorded in his presence and thereafter he deposited the seal with the NCB office 11 NCB Vs. Guddu Ali and made entry in the seal movement register. He stated that he deposited the case property in the malkhana and to this effect an entry in sl. no. 8 was made. He identified the case property as well as the paper slips which were prepared during investigation.
13. PW6 Sh. Jagmohan Khati stated that in his presence statement of public witness Bable was recorded by the IO PW4 and its contents were explained to the witness in his presence. He stated that some part of the statement is in narrative and some in question answer form. PW2 Sh. Satender Kumar stated that the accused Guddu Ali had appeared before him in pursuant to the summons ExPW2/A and had given a statement which he recorded on his dictation and thereafter it was explained to him. He stated that statement of Ami Chand was recorded by PW Mangal Dass at the dictation of Ami Chand which was read over to him before obtaining his signature. He proved his statement ExPW2/B.
14. PW7 stated that after the search, PW4 had submitted 12 NCB Vs. Guddu Ali before him his report on the search authorisation ExPW4/J and returned the seal/ entry of which was made in the register vide ExPW7/A. he stated that the seized property along with the samples and test memo in triplicate was deposited with him in malkhana for which entry was made vide memo ExPW7/B . He also stated that seizure report was submitted by PW4 and PW5 H.K. Pandey submitted the arrest report of accused and thereafter he sent the sample to CRCL along with the test memo in triplicate through the Jagdish Chand havaldar vide forwarding letter ExPW3/A. He also proved the receipt from CRCL ExPW3/B. PW3 stated that he had taken the sample along with the test memos and the forwarding letter to CRCL. and deposited it with the Mr.Sehdev Kumar who issued him a receipt ExPW3/B. PW8 Sehdev Kumar corroborated this fact.
15. PW1 Sh. P.K. Aggarwal stated that he had analysed the sample on the directions of Sh. K.C. Aggarwal and before examination the seals on the samples were intact and after analysis 13 NCB Vs. Guddu Ali he found the purity of diacetylmorphine and morphine as 1.0% and 0.27% respectively. He proved the report ExPW1/A.
16. The testimony of prosecution witnesses show that due compliance u/s 42, 50, 55 and 57 NDPS Act has been made. The prosecution has examined all the link witnesses to rule out the possibility of tempering with the case property.
17. As regards the examination of chemical examiner, I find that the exhibits were analysed by PW1 who has proved his report ExPW1/A which bears his signature as well as of chemical examiner Sh. K.C. Aggarwal. Even otherwise the said report is admissible in evidence in view of the provision u/s 293 Cr.P.C.
18. I do not agree with the contention of Ld. Defence counsel that there was tempering with the case property and the due compliance u/s 50 NDPS Act was not made out. The sample allegedly taken was weighing 5 grams. It was taken in an open place with the help of weighing balance and on the spot no physical balance 14 NCB Vs. Guddu Ali was used. The slight variation of 0.3 grams in these circumstances could be possible as due to atmospheric pressure.
19. Admittedly the particulars were filled in the notice prepared u/s 50 NDPS Act but it has been explained by PW4 that before taking search of the accused he was asked and explained of his legal right of calling a Gazetted officer or magistrate on which he recorded refusal. This fact is also corroborated by PW5. It is not the case of the prosecution that no notice u/s 50 NDPS Act was given so filling in the particulars in the said language and proforma is not at all fatal as it has been duly explained by the witnesses that the accused were told before the notice of his legal right and thereafter the accused recorded his refusal on which public witnesses also signed.
20. As regards the preparing the panchnama in English and not in the language of the accused/public witness, I find that the panchnama was explained in vernacular to the accused as well as the witness which is also apparent from the panchnama as well as the 15 NCB Vs. Guddu Ali testimony of PW4 and PW5. In this case, prosecution has examined PW7 Sh. P.L. Verma who was also the malkhana incharge and in his presence the case property was deposited and the entry was made in the register. He has also proved the relevant entry in the register.
21. Now, coming to the examination of public witnesses, in the instant case, two public witnesses namely Ami Chand and Bable were joined and in their presence the proceedings were conducted, However during evidence, they could not be traced. The record reveals that summons were sent to these witnesses number of times but they were not found living at the said address. In this case prosecution has examined two witnesses PW4 and PW5 who have proved the recovery. PW4 was tested on the anvil of cross examination but his testimony remained consistent and cogent and further accused did not cross examine PW5 thus his testimony remained unassailed on all material points. I do not find any ground to disbelieve PW4 and PW5 as no allegations of enmity were imputed 16 NCB Vs. Guddu Ali against them or there is nothing on record to show that they were interested in his false implication. It is well settled law that the testimony of the officials can be made basis of conviction if found consistent and cogent. It is not the case of the prosecution that these independent witnesses were withheld. Record shows that the efforts were made to trace them but they were not found.
22. Though in this case the accused has given a statement u/s 67 explaining the facts how the recovery was effected from him, how he was involved in the alleged case but there are other independent and cogent evident to show that there was recovery of psychotropic substance from the possession of accused. The accused did not produce any licence or permit for possessing the same which as per the provisions of the act is an offence required regulation.
23. In the light of above discussion i am of the opinion that prosecution has proved its case against accused Guddu Ali beyond reasonable doubt for offence punishable u/s 21 NDPS Act. 17 NCB Vs. Guddu Ali
24. In this case the alleged recovery was of 1 kg. of heroin As per the analysis the purity percentage of diacetylmorphine and morphine came to 1.0% and 0.27% If we add the two the actual quantity of psychotropic substance i.e. diacetylmorphine and morphine comes to 12.7 grams which is less than the commercial quantity but nearing to small quantity.
25. In the light of above discussions, I convict the accused of the offence u/s 21 (b) of NDPS Act.
Announced in the open court
On this 4th day of July, 2009 (Sanjiv Jain)
Special Judge NDPS/New Delhi
Patiala House: New Delhi
18
NCB Vs. Guddu Ali
IN THE COURT OF SH. SANJIV JAIN
SPECIAL JUDGE: NDPS: PATIALA HOUSE COURTS, NEW DELHI ORDER ON SENTENCE 1 Vide separate judgment, accused Guddu Ali has been convicted of offence punishable u/s. 21 (b) NDPS Act 2 I have heard the Ld. Counsel Sh. Samir Chandra for the convict on the point of sentence as well as Ld. SPP for the NCB. 3 The convict has remained in custody in this case for 2 years and 10 months. He is aged about 23 years. He was student when he was arrested . The recovery of diacetylmorphine from the possession of accused is 12.7 grams which nears to the small quantity. I am of the view that the convict got enough punishment for doing the wrong. He deserves to be reformed and rehabilitated.
4 Taking into consideration totality of circumstances in the 19 NCB Vs. Guddu Ali given facts I sentence the convict to go Rigorous Imprisonment for a period of two years and nine months and to pay fine of Rs.2,000/ in default thereof to undergo simple imprisonment for a period of two months. He is given benefit of section 428 CR.P.C. The case property be confiscated to the state after expiry of period of appeal or revision. File be consigned to Record Room.
Announced in open Court th on this 4 day of July, 2009 Sanjiv Jain Spl Judge NDPS : New Delhi Patiala House Courts 20