Delhi District Court
State vs . 1. Balu Singh, on 19 April, 2016
IN THE COURT OF SH. SANJAY GARG, ADDITIONAL
SESSIONS JUDGE/SPECIAL JUDGE (NDPS),
DWARKA COURTS, NEW DELHI.
Sessions Case No. 07/2/13
Unique ID No. 02405R0103072013
State Vs. 1. Balu Singh,
S/o Sh. Nain Singh,
R/o Village Sarwar,
P.S. Pidawa,
District Jhalawar,
Rajasthan.
2. Nahar Singh,
S/o Sh. Radhu Singh,
R/o Village Sarwar,
P.S. Pidawa,
District Jhalawar,
Rajasthan.
FIR No. : 21/2013
Police Station : Crime Branch
Under Sections : 21/29 NDPS Act
JUDGMENT:
1. The case of the prosecution is that on 08.02.2013 at about 6.15 a.m., a secret informer came to the office of Narcotics Cell, Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 1/24 Shakkarpur and informed ASI Devender Singh that two persons, namely, Nahar Singh and Balu, who were residents of District Jhalawar, Rajasthan and dealt in supply of Heroin from Rajasthan to Delhi, would come near footover bridge, National Highway No.8, Near Palam Airport Red Light, New Delhi between 8.30 a.m. to 9.30 a.m. for supplying Heroin. ASI Devender Singh recorded the secret information vide DD No.6 at 6.45 a.m. He produced the secret informer before Inspector Vivek Pathak and handed over a copy of DD No. 6 to him. Inspector Vivek Pathak forwarded the copy of the said DD to ACP, Narcotics Cell and directed ASI Devender Singh to conduct raid. Accordingly, ASI Devender Singh constituted a raiding team comprising of himself, HC Laxman Prasad and HC Bharat Singh. Armed with drug testing kit and electronic weighing scale, the raiding team left the office of Narcotics Cell alongwith secret informer at about 7 a.m. in a private vehicle No. DL 9CR 6330 driven by HC Kanwal Singh. On the way as well as at the spot, public persons were asked to join the proceedings but they refused to do so. Around 8.35 a.m., two men came down from the footover bridge. The secret informer identified them as the accused persons. Accused Balu Singh was carrying a cloth bag in his right hand. Both the accused were Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 2/24 apprehended when they started going back after waiting for five minutes. Secret information was disclosed to the accused persons and they were apprised about their legal right to be searched in the presence of a Gazetted Officer or a Magistrate. They were also served with separate notices under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act). However, the accused persons declined to avail the same. From the search of bag carried by accused Balu Singh, one transparent polythene bag containing matiala coloured powder was recovered. Upon testing and weighing, the powder was found to be 100 gms of Heroin. Two samples of 5 gms each were drawn which were converted into two pulandas Mark A and B. The remaining Heroin was kept in a separate pulanda Mark C. Thereafter, the search of accused Nahar Singh was taken and one transparent polythene bag containing matiala coloured powder was recovered from the right side pocket of his pant. The said substance was also tested and weighed and was found to be 300 gms of Heroin. Two samples of 5 gms each were taken therefrom and converted into two pulandas Mark D and E. The remaining Heroin was kept in a separate pulanda Mark F. FSL forms were filled. All the aforesaid pulandas were sealed with the seal of 6 APS NB DELHI and Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 3/24 seized. Rukka was prepared and on the basis thereof, FIR No. 21/13 under Sections 21 & 29 NDPS Act was registered at P.S. Crime Branch, Malviya Nagar. The case property was also sent to the SHO Inspector Padam Singh Rana who deposited the same in malkhana after affixing his seal of PSR. The accused persons were arrested and their personal search was conducted. Site plan was prepared and statements of witnesses were recorded. Reports under Section 57 NDPS Act were prepared and sent to the ACP. The disclosure statements of the accused were also recorded wherein they disclosed that the source of supply was one Sh. Narayan Singh, resident of District Jhalawar, Rajasthan. However, no evidence could be collected so as to connect Sh. Narayan Singh with the present case. The samples of the recovered substance were sent to FSL for chemical examination. After completion of investigation, the chargesheet was filed.
2. On 25.07.2013, the charge for the offences under Sections 21 & 29 NPDS Act was framed against both the accused. However, the charge was amended and reframed on 26.09.2013 to rectify the error in respect of the quantity of narcotic substance allegedly recovered from them. The accused persons pleaded not guilty and Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 4/24 claimed trial.
3. The prosecution examined 10 witnesses in support of its case. 3.1. PW1 HC Satbir Singh deposed that on the instructions of the SHO, he had taken two sealed pulandas Mark A & D and FSL forms from MHC(M) and deposited the same with FSL, Rohini on 13.02.2013.
3.2. PW2 HC Laxman Prasad was the member of raiding team. He proved the notices under Section 50 NDPS Act served upon accused Balu Singh and Nahar Singh as Ex.PW2/A and Ex.PW2/C respectively; the replies of accused Balu Singh and Nahar Singh recorded on their respective notices as Ex.PW2/B and Ex.PW2/D respectively; the seizure memo in respect of FSL form & pulandas Mark A to C as Ex.PW2/E and the seizure memo with regard to FSL form and pulandas Mark D to F as Ex.PW2/F. He also identified the carbon copies of notices under Section 50 NDPS Act served upon accused Nahar Singh and Balu Singh as Ex.P1 and Ex.P2 respectively; the sealed cloth piece and sample of Heroin of pulanda Mark A as Ex.P3 and Ex.P4 respectively; the sealed cloth piece and sample of Heroin of pulanda Mark D as Ex.P5 and Ex.P6 respectively; the sample of Heroin and sealed cloth piece of Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 5/24 pulanda Mark B as Ex.P7 and Ex.P8 respectively; the cloth bag and Heroin pouch kept in pulanda Mark C as Ex.P9 and Ex.P11 respectively; the sample of Heroin and sealed cloth piece of pulanda Mark E as Ex.P12 and Ex.P13 respectively and the Heroin pouch and sealed cloth piece of pulanda Mark F as Ex.P14 and Ex.P15 respectively.
3.3. PW3 HC Raj Kumar is the duty officer. He proved the FIR No. 21/13 as Ex.PW3/A; the attested copies of DD No. 13 and 15 regarding the initiation of recording of FIR and its closure as Ex.PW3/B and Ex.PW3/C respectively and his endorsement on the rukka as Ex.PW3/D. 3.4. PW4 HC Jag Narain is the MHC(M). He proved the entry No.1591 in Register No.19 in respect of deposit of case property, FSL forms, seizure memos and personal search articles of both the accused in the malkhana as Ex.PW4/A; copy of road certificate No. 43/21 vide which PW1 HC Satbir Singh had taken two sealed pulandas Mark A & D and two FSL forms to FSL, Rohini as Ex.PW4/B and the FSL receipt deposited by PW1 HC Satbir Singh in the malkhana as Ex.PW4/C. 3.5. PW5 ASI Rajveer Singh is the investigating officer of the case. He deposed that after the receipt of copy of FIR and rukka, he went to Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 6/24 the spot where ASI Devender, HC Bharat Singh and the accused persons met him. He proved the attested copy of DD No. 22 dated 08.02.2013 in respect of his departure from the Narcotics Cell as Ex.PW5/A; the site plan prepared by him at the instance of ASI Devender Singh as Ex.PW5/B; the arrest memo, personal search memo and disclosure statement of accused Balu Singh as Ex.PW5/C to Ex.PW5/E; the arrest memo, personal search memo and disclosure statement of accused Nahar Singh as Ex.PW5/C1 to Ex.PW5/E1; the attested copy of DD No. 29 dated 08.02.2013 regarding his arrival in the police station as Ex.PW5/F; the report under Section 57 NDPS Act prepared by him regarding the arrest of accused persons which was sent to ACP through Inspector Vivek Pathak as Ex.PW5/G; the attested copy of DD No. 7 dated 08.02.2013 in respect of departure of the raiding team from the office of Narcotics Cell as Ex.PW5/H and the certificate under Section 65B Evidence Act regarding the recording of FIR as Ex.PW5/H2.
3.6. PW6 Inspector Vivek Pathak deposed that on 08.02.2013, ASI Devender Singh produced the secret informer before him and after making enquiries and informing about the same to ACP, he had directed ASI Devender Singh to conduct raid. He proved the Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 7/24 carbon copy of DD No. 6 dated 08.02.2013 regarding the secret information recorded by ASI Devender Singh as Ex.PW6/A; the report under Section 57 NDPS Act regarding the seizure of 400 gms of Heroin prepared and submitted to him by ASI Devender Singh as Ex.PW6/B and the report under Section 57 NDPS Act regarding the arrest of accused persons prepared and submitted to him by ASI Rajveer Singh as Ex.PW5/G. He deposed that the copy of DD No.6 as well as the reports under Section 57 NDPS Act were forwarded by him to the ACP, Narcotics Cell. 3.7. PW7 Inspector Padam Singh Rana is the SHO. He proved the attested copy of DD No. 14 dated 08.02.2013 regarding the deposit of case property and documents in the malkhana by him as Ex.PW5/H1.
3.8. PW8 HC Bharat Singh was the member of the raiding team. He proved the rukka prepared by ASI Devender Singh as Ex.PW8/A. 3.9. PW9 ASI Om Prakash is the Reader to ACP, Narcotics Cell, Shakkarpur, Delhi. He proved the DD No. 6 received in the office of ACP as Ex.PW9/A; the entry made by him in the correspondence register regarding the receipt of DD No.6 as Ex.PW9/D; the reports under Section 57 NDPS Act regarding the seizure and arrest received in the office of ACP as Ex.PW9/B and Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 8/24 Ex.PW9/C respectively and the entries made by him in that regard as Ex.PW9/E. 3.10. PW10 Dr. Kanak Lata Verma is the Senior Scientific Officer from FSL, Rohini, Delhi. She proved her examination report dated 22.04.2013 regarding the samples Mark A & D as Ex.PW5/H3.
4. On 08.01.2016, the statements of the accused persons under Section 313 Cr.P.C. were recorded wherein all the incriminating evidence was put to them to which their stand was of general denial. The accused persons stated that they had been lifted by the police from a footpath of Sadar Bazar on 02.02.2013 at about 11 p.m. and falsely implicated in the present case and that no narcotic substance was recovered from their possession. However, they did not lead any evidence in their defence.
5. I have heard the Addl. PP for the State and the counsel for the accused persons. The material on record has also been perused.
6. The counsel for the accused has submitted that the accused persons have been falsely implicated in the case in as much as neither they were present at the spot nor the alleged recovery was effected Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 9/24 from them. He has argued that the falsity of the case of prosecution is apparent from the fact that no public witness had been joined by the police at the time of the alleged search and seizure. Reliance has been placed upon State of Punjab v. Baldev Singh, 1999 (4) JT 595, wherein it was held by the Apex Court that though the conduct of search and seizure in violation of statutory safeguards as provided in Sections 100, 102, 103 and 165 Cr.P.C. per se does not vitiate the trial but it has to be borne in mind that such search and seizure would be violative of the reasonable, fair and just procedure.
6.1. In Baldev Singh case (supra), the Hon'ble Supreme Court had laid down the rule of caution. However, it is also trite that nonjoining of public witnesses itself can not become a ground for acquittal if the case of prosecution is otherwise reliable. In State of Haryana v. Mai Ram, (2008) 8 SCC 292, it was observed that the ultimate question to be asked is, whether the evidence of the official witness suffers from any infirmity. The case of the prosecution can not be held to be vulnerable for nonexamination of person who were not official witnesses. In such cases, if the statements of official witnesses corroborate the proceedings conducted, the case of the prosecution can not be disbelieved. This position was reaffirmed Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 10/24 by the Apex Court in State, Govt. of NCT of Delhi v. Sunil and Another, (2001) 1 SCC 652, wherein it was held that :
"... Hence, when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through crossexamination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions".
6.2. The instant case hinges on the testimonies of the police witnesses.
PW6 Inspector Vivek Pathak deposed that on 08.02.2013, when he was posted as Inspector at Narcotics Cell, Shakkarpur, Delhi, ASI Devender Singh alongwith Secret Informer came to his office at 6.30 a.m. and informed that two persons, namely, Balu Singh and Nahar Singh would come near footover bridge, National Highway No. 8, Near Palam Airport Red Light to supply Heroin to someone and upon his direction, ASI Devender Singh constituted a raiding Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 11/24 team comprising of himself, HC Laxman Prasad and HC Bharat Singh. Though ASI Devender Singh could not be examined as he was suffering from cancer but the prosecution has examined HC Laxman Prasad and HC Bharat Singh as PW2 and PW8 respectively. In his testimony, PW2 HC Laxman Prasad stated that the raiding party left the Narcotics Cell on 08.02.2013 at 7 a.m. alongwith secret informer and driver HC Kamal Singh in a private Alto car No. DL 9CR 6330 after recording its departure vide DD No. 7 (Ex.PW5/H) and reached at the spot at 8.15 a.m. At about 8.35 a.m., they noticed two persons coming down from the footover bridge and the secret informer identified them as accused Balu Singh and Nahar Singh. Both the accused came down from the footover bridge and were apprehended when they started going back after waiting for five minutes. ASI Devender Singh asked 8 10 persons, who had gathered at the spot, to join the proceedings but none was willing and they left without telling their names and addresses. Thereafter, the accused were served with separate notices under Section 50 of the NDPS Act. Since both the accused refused to avail the same, their search was taken and one transparent polythene bag each containing matiala coloured powder were recovered from the cloth bag carried by the accused Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 12/24 Balu Singh and the right side pocket of the pant of accused Nahar Singh and upon testing, the contents of both the polythene bags were found to be Heroin weighing 100 gms and 300 gms respectively. The witness further stated that the contraband recovered from the possession of accused Balu Singh and Nahar Singh were seized vide separate memos and proved the same as Ex.PW2/E and Ex.PW2/F respectively. PW8 HC Bharat Singh also deposed on the same lines as that of PW2 HC Laxman Prasad. Both the above witnesses were crossexamined by the accused persons but they failed to dent their testimonies and elicit anything material from them. In fact, the defence raised by the accused persons suffers from contradiction. While in the crossexamination of PW8 HC Bharat Singh, the accused persons suggested that they had been lifted from the bus stand at Dhaula Kuan, in their statement under Section 313 Cr.P.C., they claimed to have been picked on 02.02.2013 from a footpath of Sadar Bazar. Further, the accused persons have stated in their statements under Section 313 Cr.P.C. that on 02.02.2013 at about 11 p.m., when they were sleeping on footpath alongwith many other persons, the police officials took eight of them to P.S. Crime Branch and on 03.02.2013, while the other six persons were released, both of Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 13/24 them were detained and implicated in the case. However, none of the said persons has been examined by the accused persons in support of their defence. It is not the case of the accused persons that the police officials had any enmity against them. In the absence of animosity, it is hard to believe that the police would implicate the innocent persons in such a serious case by planting a huge quantity of Heroin on them. Moreover, the accused persons have not lodged any complaint to any authority regarding their false implication. Considering the material on record, the non joinder of the independent public witnesses does not cast any doubt on the case of the prosecution and it has succeeded in proving the apprehension of the accused persons from the spot as well as seizure of the narcotic drug from them.
6.3. The counsel for the accused has argued that a suspicion is created regarding the case of the prosecution as one of the members of the raiding team namely Constable Kanwal Singh was deliberately not examined and while PW5 ASI Rajveer Singh and PW8 HC Bharat Singh stated his name as Kanwal, PW2 HC Laxman Prasad mentioned the name as Kamal. I find no merits in the contention. A perusal of the proceedings conducted and the documents prepared at the spot shows that Constable Kanwal Singh was Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 14/24 neither joined in the investigation nor any document was signed by him as the witness. Infact, Constable Kanwal Singh had accompanied the raiding team in the capacity of a driver and thus, his examination by the prosecution was not required. As far as the discrepancy appearing in his name in the evidence of the prosecution witnesses is concerned, the same is attributable to the fact that the words 'Kanwal' and 'Kamal' are phonetically similar.
7. The counsel for the accused has next contended that there was delay of five days in sending the sample parcels to the laboratory which is against the NCB guidelines and thus the same should be read against the prosecution. He has placed reliance upon Matloob v. State (Delhi Administration), 67 (1997) DLT 372, wherein the Hon'ble Delhi High Court held that the sample needs to be sent to the FSL without delay and if the sample was dispatched with delay and no explanation was given, tampering with the sample can be inferred. He has also argued that neither the FSL form has been proved on record nor there is any evidence to show that it was sent to the FSL alongwith the samples.
7.1. It is a settled law that to safeguard the possible tampering, the sample should be sent to the laboratory at the earliest, preferably Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 15/24 within 72 hours, and in case of delay, the onus is on the prosecution to show that there was no tampering with the case property and the samples. In the event of doubt, the benefit has to be given to the accused, however, if the prosecution satisfies that there was no tempering, the delay is to be ignored. 7.2. The prosecution has completed the link evidence in this case by examining all the material witnesses, namely, HC Laxman Prasad (PW2), who took the case property alongwith rukka from the spot to the police station; Inspector Padam Singh Rana (PW7) to whom the case property was handed over by HC Laxman Prasad in the police station; the MHC(M) HC Jag Narain (PW4) to whom the case property was handed over by Inspector Padam Singh Rana while depositing it in the malkhana; HC Satbir Singh (PW1), who took the sample parcels with FSL forms to the laboratory from the malkhana.
7.3. PW2 HC Laxman Prasad has deposed that after the seizure of 100 gms of Heroin from the accused Balu Singh and 300 gms of Heroin from the accused Nahar Singh, two samples each were drawn from the recovered substance and ASI Devender Singh sealed all the six pulandas Mark A to F with his official seal 6 APS NB DELHI, filled the FSL forms, affixed sample seal on the FSL forms and Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 16/24 handed over the seal to HC Bharat Singh (PW8). PW7 Inspector Padam Singh Rana deposed that on receipt of pulandas Mark A to F and two FSL forms from HC Laxman Prasad, he affixed his seal of PSR on them. PW4 MHC(M) HC Jag Narain has corroborated the testimonies of PW2 and PW7 and stated that when the case property was deposited in the malkhana, specimen seals of 6 APS NB Delhi and PSR were existing thereon. Infact, the entries in Register No.19 (Ex.PW4/A) are the best evidence on this aspect of the matter. It specifically records that all the six pulandas and two FSL reports were indeed containing specimen seal of 6 APS NB Delhi and PSR at the time of deposit in the malkhana. PW1 HC Satbir Singh deposed that when he had taken sample pulandas Mark A & D and FSL forms from malkhana to laboratory, the same were sealed with the seal of 6 APS NB Delhi and PSR. All the above witnesses stated that as long as the pulandas and FSL forms remained in their custody, the same were not tampered with in any manner. PW10 Dr. Kanak Lata Verma from FSL, Rohini has also stated that two sealed parcels alongwith FSL forms were received in the laboratory on 13.02.2013 and the FSL report (Ex.PW5/H3) specifically records that the seals on the parcels were found intact and tallied with the specimen seals. From the above, it Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 17/24 stands established that the FSL forms were prepared at the spot; were taken to police station alongwith the case property by HC Laxman Prasad; were deposited in the malkhana by Inspector Padam Singh Rana and were taken from the malkhana to the laboratory alongwith sample parcels by HC Satbir Singh. Further, there is no evidence to suggest that during the time the case property, samples and FSL forms remained in possession of the prosecution witnesses, the same were tampered with by anyone. Thus, the delay in sending samples to the laboratory can not be read against the prosecution.
8. The counsel for the accused has further argued that since the weight of samples drawn at the spot differed from the weight of samples received in the laboratory, the tampering can not be ruled out. He has pointed out that while as per the seizure memos, the weight of samples Mark A & D was 5 gms each, the FSL result indicates that the same were weighing 7.09 gms and 7.39 gms respectively. It is a matter of common knowledge that the weighing scales used in the laboratory are much more advanced and accurate than those used by the police officials. Since it has already been observed that the seals on the sample parcels had remained Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 18/24 intact, the difference in the weight of samples is the outcome of difference in the weighing scales used by the two agencies.
9. The record reveals that the statutory safeguards as prescribed in Sections 42, 50 and 57 NDPS Act were also complied with by the investigating agency.
9.1. Though Section 42 NDPS Act was not applicable in the present case and the secret information was not required to be reduced in writing as the search, seizure and arrest had been made from a public place but still ASI Devender Singh complied with the provisions of Section 42 and recorded the secret information on 08.02.2013 at 6.45 a.m. vide DD No.6. PW6 Inspector Vivek Pathak has deposed that on 08.02.2013, ASI Devender Singh produced the copy of DD No.6 before him which was forwarded by him to the ACP, Narcotics Cell. PW9 ASI Om Prakash, Reader to ACP, has proved the copy of DD No.6 received in the office (Ex.PW9/A) as well as the endorsement dated 08.02.2013 made thereon by the ACP. He has also proved the entry No. 346 made by him in the correspondence register regarding the receipt of DD No 6 as Ex.PW9/D. 9.2. Further, ASI Devender Singh had also served separate notices Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 19/24 under Section 50 NDPS Act upon both the accused. PW2 HC Laxman Prasad and PW8 HC Bharat Singh, who were the witnesses to the same, have proved the notices served upon accused Balu Singh and Nahar Singh as Ex.PW2/A and Ex.PW2/C respectively. Perusal of the said notices reveals that the accused were apprised of their right to be searched before a Gazetted Officer or a Magistrate and that before their search, they could take search of raiding team members and their vehicle. PW2 and PW8 further deposed that the accused persons declined to avail the same and their replies were reduced into writing by ASI Devender Singh on the respective original notices. They have proved the replies of accused Balu Singh and Nahar Singh as Ex.PW2/B and Ex.PW2/D respectively which bear the signatures of accused persons at point A1. Here it is noteworthy that in the personal search of the accused Balu Singh and Nahar Singh conducted by PW5 ASI Rajveer Singh vide memos Ex.PW5/D and Ex.PW5/D1 respectively, the carbon copies of their respective notices under Section 50 NDPS Act were recovered which have been proved as Ex.P2 and Ex.P1. The recovery of notices under Section 50 NDPS Act during the personal search of accused persons clearly prove that the notices Ex.PW2/A and Ex.PW2/C were duly served upon Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 20/24 them. Therefore, the compliance of Section 50 NDPS Act stands established.
9.3. Further, PW6 Inspector Vivek Pathak deposed that the reports under Section 57 NDPS Act regarding seizure and arrest were prepared and submitted to him by ASI Devender Singh and ASI Rajveer Singh respectively which were forwarded by him to ACP, Narcotics Cell. He has proved the copies of said reports as Ex.PW6/B and Ex.PW5/G respectively. The prosecution has also examined PW9 ASI Om Prakash from ACP office who proved the reports of seizure and arrest received in the office (Ex.PW9/B and Ex.PW9/C) as well as the endorsement dated 09.02.2013 made thereon by the ACP. He has also proved the entries No. 355 and 356 made by him in the correspondence register regarding the receipt of said reports as Ex.PW9/E. In view of the above, the compliance of the provisions of Section 57 NDPS Act also stands established.
10. Qua the nature and composition of the substance recovered from the accused persons, the prosecution has examined PW10 Dr. Kanak Lata Verma, who proved her report dated 22.04.2013 (Ex.PW5/H3) wherein she has opined that the sample parcels Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 21/24 contained Diacetylmorphine, 6Monoacetylmorphine, Paracetamol, Caffeine and Phenobarbital. Diacetylmorphine is the chemical name for Heroin.
11. In the light of above discussion, the prosecution has successfully proved that 100 gms and 300 gms of Heroin were recovered from the possession of accused Balu Singh and Nahar Singh respectively.
12. An additional charge under Section 29 NDPS Act was also framed against the accused persons. The said Section prescribes punishment for criminal conspiracy. To bring home the charge of conspiracy within the ambit of Section 29 NDPS Act, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is true that it is difficult to support the charge of conspiracy with direct evidence in every case but if the prosecution relies upon circumstantial evidence, four fundamental requirements as laid down in Queen Empress v. Hoshhak, 1941 ALJR 416, must be satisfied namely,
(i) That the circumstances from which the conclusion is drawn be fully established;
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(ii) That all the facts should be consistent with the hypothesis of guilt;
(iii) That the circumstances should be of a conclusive nature and tendency;
(iv) That the circumstances should, by a moral certainty, actually exclude every hypothesis but the one proposed to be proved. 12.1. In the case on hand, the allegation against the accused persons is that they had entered into a conspiracy to sell Heroin to one Rajpal after bringing it from one Narayan Singh, resident of District Jhalawar, Rajasthan. However, no material could be collected by the investigating agency in support of the charge except the disclosure statements of the accused persons which are inadmissible in law. Considering the same, the prosecution has failed to prove that the accused had hatched criminal conspiracy before the commission of offence in this case.
13. Resultantly, the accused Balu Singh, who was found in possession of 100 gms of Heroin which is an intermediate quantity, is convicted for the commission of offence punishable under Section 21 (b) NDPS Act. From the possession of accused Nahar Singh, 300 gms of Heroin was recovered which falls under commercial Sessions Case No. 07/2/13 State Vs. Balu Singh & Anr. Page No. 23/24 quantity. Accordingly, he is convicted for the commission of offence punishable under Section 21 (c) NDPS Act. The case property is confiscated to the State and in case no appeal is filed within the prescribed time, the same may be disposed of as per rules.
Let the accused persons be heard on the point of sentence on 25.04.2016.
Pronounced in the open court. (SANJAY GARG)
Dated: 19.04.2016 Special Judge (NDPS),
Dwarka Courts, New Delhi.
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