Delhi District Court
State vs . 1. Murari Lal on 31 July, 2009
IN THE COURT OF SH. SANJIV JAIN
SPECIAL JUDGE: NDPS: PATIALA HOUSE COURTS, NEW DELHI
Date of Institution:01/04/2003
Judgment reserved on: 31/7/2009
Date of pronouncement: 31/7/2009
SC No. 116/07
ID No. 02403R0164912004
FIR No. 14/03
P.S. Nr. Branch
U/s. 21 NDPS Act
State Vs. 1. Murari Lal
s/o Sh. Bhagwan Sahai
R/o. village Dhankhada, P.O. Lakedi,
Tehsil Bansor Distt. Alwar
2 Rambir Gurjar
s/o Mangtu Ram
r/o Village Tedpur PO Kho,
Tehsil Laxman Garh.
Distt. Alwar Rajasthan
JUDGMENT
1. Prosecution case in brief is that on 5/3/2003 at about 8:00 a.m. SI Sunil Kumar of PS Narcotics Branch received a secret information about accused Murari Lal and Rambir who used to supply charas in Delhi that they would come at about 10:00 a.m. at Thimaya Park Kariappa Marg, Delhi Cantt. to supply charas. The information 1 was conveyed to SHO who after discussing it with the informer, informed ACP on phone at his house who directed them to conduct raid.
2. SI Sunil Kumar constituted a raiding party comprising of HC Harcharan Singh, HC Omkar Singh, HC Yudvir, HC Bijender, Ct. Dushyant along with secret informer. They reached at Thimaya Park Delhi Cantt. at 9:15 a.m. in a govt. vehicle DL1B 3570. There 10 persons were requested to join but none agreed and they all went away without telling their names and addresses showing their unavailability. The members of the raiding party took their position. At about 12:15 p.m. one TSR bearing no. DL 1RG 4610 came from the side of Dhaula Kuan and stopped near sign board of Thimaya Park Chambri. One person got down from the TSR. Another person was talking with the driver. They were apprehended at the instance of the informer. They revealed their names Murari Lal and Rambir. They were apprised of the information and given notices u/s 50 NDPS Act apprising them of their legal rights to be searched before a Gazetted Officer/Magistrate on which they got recorded their refusal. TSR 2 driver also agreed to join the raid. Search was conducted. From the search of accused Murari Lal, from the green colour bag 19 slabs of black colour substance wrapped with the khaki tape inside the bag giving strong smell were recovered. On checking with the help of testing kit, it gave positive indication for charas weighing 10 kg. Two samples of 3535 grams each were drawn. The samples and the case property were sealed with the seal of 6 APS NB Delhi, form CRCL was also prepared at the spot on which the seal impression was put. Search of another bag was conducted. From its search 15 slabs of big size of black colour substance wrapped with the khaki tape inside the bag giving strong smell were recovered. On checking with the help of testing kit, they gave positive indication for charas weighing 15 kg. Two samples of 3535 grams each were drawn. The samples and the case property were sealed with the seal of 6 APS NB Delhi, form CRCL was also prepared at the spot on which the seal impression was put. The case property was seized. From the search of another accused Rambir, nothing incriminating was found. Rukka along with the case property was sent to the Police Station through HC Bijender 3 where he handed over the rukka to duty officer HC Mahender Singh who recorded the FIR. He handed over the case property to the SHO who put his seal 1 SHO NBR Delhi. SHO called Moharrar Malkhana with register number 19 and got it entered in the register. Further investigation was conducted by SI Brij Pal who prepared the site plan, arrested the accused persons, recorded the statement of driver of TSR. Both the accused were also interrogated. From the search of accused, copy of notices u/s 50 NDPS Act were recovered. The sample was sent to the CRCL for analysis. As per the report, the substance was found to be charas. After investigation, they were sent for trial for the offence punishable u/s 20/29 NDPS Act.
3. On their appearance, after complying with the requirements contemplated section 207 Cr.P.C and hearing arguments, a prima facie case was made out and the charge was framed against the both accused persons under section 29 r.w.s. 20 (b) (ii) (c) NDPS Act and against accused Murari Lal u/s 20 (b) (ii) (c) NDPS Act. Accused pleaded not guilty and claimed trial.
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4. To substantiate its allegations against the accused, prosecution examined as many as eleven witnesses.
PW1 HC Harcharan Singh was the member of raiding party. He proved notices u/s 50 NDPS Act ExPW1/A and B, seizure memos ExPW1/C and D, site plan ExPW1/F, arrest memos of both accused ExPW1/G and H, personal search memos of both accused ExPW1/J and K, disclosure statement of both accused ExPW1/L and M. He proved case property ExP1 to ExP8.
PW2 HC Mahender Singh was the duty officer at that time. He recorded the FIR on receipt of rukka sent by SI Sunil Kumar and handed over further investigation to SI Brij Pal. He proved the copy of FIR ExPW2/A and endorsement on rukka ExPW2/B. PW3 HC Bhagwat Dayal was looking after the work of MHCM on that day. HC Aswini Kumar handed over him the copy of the RC as acknowledgment receipt from FSL.
PW4 HC Ashwini Kumar had taken the samples along with two CRCL forms and to CRCL vide RC no. 17/21 and stated that so long as the sample remained in his custody, the same were not 5 tempered with.
PW5 HC Gyan Prakash was the moharrar malkhana. He received six parcels bearing the above seal, made entry in register number 19 at sl. no. 278. On 5/3/2003 he had also received personal search of the accused. On 17/3/2003 he got the samples sent along with 4 CRCL forms to CRCL through HC Ashwani Kumar vide RC no. 17/21, made the relevant entry, on 2/6/2003 he received the remnant sample and the report by dak. He proved the entry in malkhana register ExPW5/A and the copy of RC ExPW5/B. PW6 Insp. S.P. Kaushik was the SHO posted at PS Narcotics branch. He stated that on receipt of information from SI Sunil Kumar, he met the informer. He informed ACP Sh.R.P. Sharma who directed him to conduct raid. Accordingly he directed SI Sunil Kumar to constitute a raiding party and conduct a raid. He proved the DD no. 3 ExPW6/A in this regard. He stated that at about 4:05 p.m. HC Bijender came in his office and produced the two carbon copies of seizure memo along with 4 envelop parcels and two cloth parcels and CRCL forms in duplicate sealed with the seal of 6A PS NB Delhi on which he put FIR 6 number and his official seal and called HC Gyan Prakash with register no. 19. He deposited the case property and lodged DD entry ExPW6/B. He stated that on the same day at about 9:15 p.m. SI B.P. Singh produced both the accused before him from whom he personally verified the facts and on 6/3/2003 two reports u/s 57 NDPS Act regarding seizure and arrest of the accused were produced before him by SI Sunil Kumar and SI B.P. Singh which he forwarded to ACP Narcotics branch and on 17/3/2003 on his direction, HC Ashwani had taken the samples to CRCL.
PW7 HC Hassan Raza who was posted in the office of DCP proved the two reports u/s 57 NDPS act ExPW7/A and B of which entry was made in the register. He proved the initials of Sh. D.L. Kashyap DCP on the reports which were entered at 341 and 342 Ex PW7/C and D. PW8 ASI Bijender Singh was the member of raiding party. He in his examination reiterated the prosecution story PW9 SI Sunil Kumar was the person who had received the information and led the party. He proved the seizure memo ExPW1/C 7 and reply of accused Murari on notice u/s 50 NDPS Act ExPW9/A and stated that at his instance site plan was prepared. In his presence accused was arrested. He also proved original report u/s 57 NDP Act ExPW9/B. He also identified the case property ExP1 to ExP8.
PW10 SI Brij Pal did further investigation of this case, arrested the accused, prepared the site plan ExPW1/E as well as arrest report of accused persons u/s 57 NDPS Act. He also recorded the disclosure statement of accused.
PW11 Sh. Joginder Singh was the TSR driver in whose TSR both accused persons had reached at Themiya park with contraband.
5. Statement of accused persons U/s 313 Cr.P.C were recorded, wherein they stated that nothing was recovered from their possession and they were falsely implicated in this case. They did not examine any witness in their defence.
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6. I have heard the arguments advanced by Ld. APP for the State and Ld. Counsel Sh. H.S. Bhullar for the accused Ramvir and Sh. Sameer Chandra for the accused Murari Lal and have gone through the evidence on record.
7. Ld counsel Sh. HS Bhullar contended that recovery was allegedly effected from Murari Lal and not from Rambir. There is no evidence to show that he was party to conspiracy with Murari Lal or that he had sold / purchased or transported the contraband. There is no evidence to show that they knew each other from before or had prior meeting before the alleged recovery. The prosecution witnesses did not say that accused Rambir had to get down from the TSR with Murari Lal with the bags which itself shows that Rambir had to travel further in the TSR. No enquiry was made from the alleged supplier Vijay and Ram Hari and there is no evidence to complete the chain as required u/s 29 of the Act.
Ld counsel further argued that there is overwriting on the DD no. 3 Ex PW6/A and further part of the entry shows the date of 9 5.2.03. Ld counsel further argued that the TSR driver, the alleged independent witness did not say anything incriminating against Rambir and thus prosecution has failed to prove its case against accused Rambir.
8. Ld counsel Sh. Sameer Chandra for the accused Murari Lal in addition to the contentions raised above argued that the so called information was not reduced in writing thus no compliance u/s. 42 NDPS was made. Except the TSR driver, no other public witness was joined in the investigation whose testimony is of full of contradictions. Ld counsel further argued that there is delay in sending the samples in laboratory for which no explanation has been given by the prosecution. Ld counsel further argued that there are material contradictions in the testimony of prosecution witnesses for which accused deserves the benefit.
9. Ld APP urged to the contrary 10
10. I have considered the submissions.
11. In the instant case Pw9 SI Sunil Kumar had received the secret information on 5.3.03 at about 8 am that two persons namely Murari Lal ad Rambir resident of Alwar, Rajasthan involved in supply of charas in Delhi would come at Thimaiya park, Carriyappa marg, Delhi Cantt. to supply charas at 10 am to someone. He produced the informer before the SHO who made verification from the informer, took instructions from the ACP on telephone and directed to conduct raid. Pw9 has stated that he had recorded the information vide DD Ex. PW6/A and had produced it before the SHO. Thus due compliance u/s. 42 NDPS Act has been made.
12. The police party before departing the police station had made the departure entry vide DD no. 4. On the spot, they had requested 10 persons to join the raiding party but none agreed and thereafter the police party put barricades at the chambri of Thimaiya park after taking respective positions. Pw9 stated that at 12.15 pm 11 TSR DL 1RG 4610 came from the side of Dhaula Kuan, stopped near the sign board from which accused Murari Lal got down with a black colour bag in his hand. After putting it on the ground, he took out another bag of green colour from TSR in his left hand. He stated that the other person in the TSR was talking to the driver inside the TSR. The other prosecution witnesses also stated these facts that when Murari lal got down from the TSR and took out the bags from it, accused Rambir, the other person sitting in the TSR did not assist him rather he was talking to the TSR driver. Nothing in evidence came that he had a talk with Murari Lal or helped him in taking out the bags from the TSR. The police party did not seize any document that accused Murari Lal had acquaintance with Rambir or that they used to do the business of drug trafficking together. The TSR driver, the sole independent witness stated to the extent that the person who had got down from his auto was surrounded by some persons whom the secret information was told. He stated that accused Murari Lal had taken out the bag in which 19 slabs of charas were recovered weighing 10 kg. He also stated that form the second bag 15 slabs of 12 charas weighing 15 kg were recovered. He did not say a single word against the accused Rambir. He denied the suggestions of the prosecution that he has not been identifying Rambir deliberately or that Rambir was apprehended with accused Murari. There is no recovery of any incriminating material from the possession or at the instance of Rambir.
13. For the sake of arguments even if it is assumed that he was travelling in the same TSR with the accused Murari Lal, he cannot be held liable for conspiracy / abetment as he was not the party to any transaction, he was not talking to the accused Murari Lal when he was apprehended, he did not help him in taking out the bags from the TSR rather he was talking to the TSR driver. So how in these circumstances he can be made accused or held liable. In the case Abdul Rashid Vs. State of Bihar JT 2001 (3) SC 183, the accused Abdul Rashid was found to be in company with the coaccused Mohd Islam from whose possession, the offending article was recovered, the investigating officer had prior information that the accused were coming with the offending article - it was held that the conviction of 13 the accused cannot be sustained.
14. In the instant case the so called disclosure statement was after the recovery that too before the police officials which is without corroboration in material particulars. There is no recovery of any contraband from the possession of accused Rambir. There is no evidence that he was party to the criminal conspiracy or knew the accused Murari Lal from before. The prosecution has failed to prove that the accused was in conscious possession of the contraband thus he is entitled to benefit.
15. Now coming to the role of Murari Lal. The information qua him was very specific. He was found handling two briefcases which had in all 34 slabs of charas weighing 25 kg. Before taking his search, a notice u/s. 50 NDPS Act was given apprising of the information and his legal right to be searched before a gazetted officer which he declined. The sole independent witness Pw11 very well supported the case of the prosecution. I did not find any material 14 contradictions to disbelieve him or draw an inference that he knew Murari Lal from before or was interested in his false implication. He has very well brought home the guilt of the accused beyond reasonable doubt. He has identified the case property as well as narrated the prosecution story in sequence. In this case, efforts were made to join other public witnesses but none came forward. Pw11 is also an independent witness and there is no ground to disbelieve him. The accused was found taking out the bags from TSR holding them in his hands which on opening were found to contain 19 and 15 slabs of charas respectively. The case property was correctly identified by the prosecution witnesses. The prosecution has examined all the link witnesses SI Sunil the seizing officer, Inspector S.P. Kaushik who put his seal of 1SHO NBRDELHI on the parcels, FSL form and got it entered in register no. 19 through HC Gyan Prakash. The prosecution has also examined HC Virender who had taken the parcels to SHO, the MHC(M) is also examined with the constable who had taken the samples to the laboratory thus ruling out the possibility of tampering with the case property. All these witnesses were tested 15 at the anvil of cross examination but I did not find any material contradictions to disbelieve them. Although there are minor contradiction but they do not touch the root of the case in any manner and falsify the case. In this case prosecution has proved the report u/s. 57 NDPS of seizure prepared by SI Sunil and arrest prepared by SI Brij Lal receipt of which was duly proved by Pw7 ASI Hasan Raza who was posted in DCP office, he stated that the reports were initialed by DCP Narcotics. Thus the compliance u/s. 42, 50, 55, 57 NDPS Act was made and all the procedural safeguards were followed as provided in the case Ritesh Chakraborty Vs. State of MP 2006 (3) JCC (Narcotics) 150.
16. As regards the entry / first information Ex. PW6/A, admittedly there is an overwriting of date in DD no. 3. In its content date of 5.2.03 has been mentioned but all other documents available on record show that the information was received on 5.3.03 not on 5.2.03 and this fact is also testified on oath by the prosecution witnesses. Hence no much emphasis can be given on this aspect. 16
17. In the instant case the alleged recovery is 25 kg of charas. The sample of charas were sent to the FSL, the THC percentage was found to be ranging from 1.5 to 9.4 thus the actual quantity comes tp be 106.83 grams which is just above the small quantity but far below the commercial quantity.
18. For the reasons stated above I acquit the accused Rambir for the offence giving him benefit of doubt. Bail bond surety bond of accused Rambir cancelled, his surety be discharged. However I convict the accused Murari Lal of the offence punishable u/s. 20(b)
(ii)(B) NDPS Act.
Announced in open Court st on this 31 day of July, 2009 Sanjiv Jain Special Judge NDPS : New Delhi Patiala House : New Delhi 17 IN THE COURT OF SH. SANJIV JAIN SPECIAL JUDGE: NDPS: PATIALA HOUSE COURTS, NEW DELHI ORDER ON SENTENCE I have heard Ld counsel Sh. Sameer Chandra and Ld APP on the point of sentence.
The convict Murari Lal is aged about 44 years, married and has three children. He does farming on his agricultural land in Rajasthan. He has remained in custody in this case for more then 3 years. Except this case, he has no other criminal involvement.
Taking into consideration, his age, antecedents, facts and circumstances of the case I sentence the convict to undergo to rigorous imprisonment for a period of 3 years and to pay fine of Rs. 2000/ in default thereof to undergo simple imprisonment for a period of six months. He is given benefit of section 428 CrPC. The case property be confiscated to State after expiry of period of appeal or revision.
File be consigned to record room.
Announced in open Court st on this 31 day of July, 2009 18 Sanjiv Jain Spl Judge NDPS : New Delhi Patiala House Courts 19