Delhi District Court
State vs . Tapas Mistry on 17 April, 2007
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IN THE COURT OF SHRI S.N. GUPTA : ADDL. SESSIONS JUDGE
PATIALA HOUSE COURTS : NEW DELHI.
S.C. No. : 10A/06
FIR No. : 143/01
PS : Lodhi Colony
U/s : 20 NDPS Act
State Vs. Tapas Mistry
JUDGEMENT
The prosecution case is that the accused was arrested on the allegation that he was found in possession of 38 Kg. of Ganja on 25-4-2001 at about 9.45 AM at bus stand opposite Jawahar Lal Nehru Stadium, New Delhi. So, the challan was filed in this special designated court of NDPS cases. The charge was framed to which the accused pleaded not guilty and claimed trial.
2. The prosecution examined as many as 12 witnesses in support of their case. PW-1 is HC. Naresh Kumar. He deposed that on 25-4-2001 he along with HC Ajit Singh, Ct. Naresh Kumar, HC Vijender Singh, and HC Chander Bhan, HC Sunil Kumar were present at the bus stand opposite Jawahar Lal Nehru Stadium for checking anti-robbery tickets and bus checking. At about 9.45 AM a bus route No. M-13 came from Alaknanda 2 side which was going to New Delhi Ralway Station and on the bus stand of Nehru Stadium when bus was stopped two persons got down from the said bus and they were having gunny bag with them. After alighting from the said bus they started going from the bus stop with the gunny bag by carrying themselves on their shoulders. On seeing the police officials they took the opposite direction. On suspicion HC Ajit Singh chased them and apprehended them and after apprehension from these accused persons 38 Kg. of Ganjha was recovered. Out of that 1 Kg. was taken as sample. The seal was handed over to one public witness Raj Kumar. CFSL form was also filled up and handed over the same to the SHO and he took the rukka along with the case property. He exhibited the gunny bag as Ex.P-1 and Ganja is Ex. P-2 and the sample Ganjha is Ex.P-3. In the cross- examination this witness says that it was weighed on a scale brought from a fruit shop. He denied the suggestion that the public witness Raj Kumar is a stock witness.
3. PW-2 is HC Ajit Singh, No. 8025/DAP, 7th Battalion also deposed in the same line as PW1 has deposed. In the cross-examination he says that he did not remember the number of the bus. No notice was given to any public person. He made a call at about 9.55 AM to the AATS office. SI Pankaj came at the spot after about 20 minutes. The weighing scale was meant for weighing about 5 to 10 Kg of thing. He denied the 3 suggestion that nothing was recovered. He was further called for further examination. In that examination he exhibited the rukka as Ex.PW2/F, the case property seized vide Ex.PW2/B, the site plan Ex.PW2/G, the arrest memo Ex.PW2/H , the notice of arrest is Ex.PW2/1 and other documents. In the cross-examination he further denied that he has deposed falsely and documents were prepared after wards.
4. PW-3 is Inspector Ramphal Singh, SHO Hauz Khas who also deposed in the same way. He says that he put his seal on the recovered case property and also on FSL form. In the cross-examination he says that he deposited the case property with MH(C)M at about 11.40 AM. He denied the suggestion that he did not put the seal on these pulandas.
5. PW-4 is HC Deep Singh, No. 450 SD, PS Lajpat Nagar. He is the person who recorded the FIR which is Ex.PW4/A.
6. PW-5 is Raj Kumar S/o Late Sh. Guddhan Lal, Aged 36 years, R/o H.No. 94, MB Road, Khanpur, New Delhi-62. He is a public witness. He deposed that on 25-4-01 when he boarded a bus from Alaknanda, the accused also boarded in the bus and were having gunny bags and had got down at JNU. On checking the gunny bags it was found containing a substance like Tobacco colour in consolidated form like bricks. The 4 substance was found to be of 38 Kg. He identified the case property. In the cross-examination he says that weighing machine was the machine which is kept on the ground and it was not a old type 'Taraju'. He does not remember the colour of the weighing machine. The contraband was weighed about 4 times. He does not know how the senior officers were called at the spot. He says that writing work was done at the bus stand. The seal was handed over to him but he returned the same on the spot itself. He denied the suggestion that no recovery was taken place in his presence.
7. PW-6 is HC Pratap Singh who deposed that the case property in this case was deposited by the SHO. He brought the register No. 19 and the same is Ex.PW6/A and Ex.PW6/B.
8. PW-7 is HC. Bijender Singh. He deposed that he has taken the sample and deposited the same in FSL Malviya Nagar vide RC No. 41/21 and 42/21 dated 4-5-2001.
9. PW-8 is HC Sunil Gaur. He is the IO of this case. He repeated that PW1 has stated regarding this case. In the cross-examination he says that weighing machine was ordinary weighing scale having chains and disks. The weights were of 2 Kg., 1Kg. and other small quantity. He did 5 not remember at what time he returned back to the spot. One public person had joined the proceedings who was passing by. He had got down from the same bus. He did not know how many documents were signed by public witness Raj Kumar. He also did not recollect as to how many number of seals were fixed on the gunny bags nor he remember as to how many seals were affixed on the sample parcel.
10. PW-9 is Alok Kumar, Addl. DCP, East District, Delhi Police. He deposed that he received information as required U/s 57 NDPS Act.
11. PW-10 is HC Pratap Singh. He deposed that he is the Malkhana Moharar. He says that Ganjha was deposited in the PS in Malkhana. He made his endorsement at serial No. 982 at Ex. PW10/A.
12. PW-11 is Sh. S.K. Singhla, Senior Scientific Officer, CFSL, New Delhi. He deposed that on 4.5.2001 he was working as Sr. Scientific Officer in FSL Malviya Nagar. He received one sealed parcel along with forwarding letter and specimen seal impression of PS and RPS in the office which was marked to him for examination and opinion. On opening the parcel greenish brown vegetative material was found and was given as Ex.
1. and it bears his signatures at point A. The remnant of the parcel were resealed with the seal of SKS, FSL Delhi and were returned. In the cross-
6examination this witness deposed that he worked in FSL, Malviya Nagar from 18.5.1999 to 5.11.01. The tests were performed by him with the assistance subordinate staff. It is not mentioned in his report and in his register that how many times the examination were repeated. He did not perform the test for female flower but he performed the other microscopic tests. Under the microscopic test he found the presence of unicellular retort shape hair which is a characteristics of Canabis plant. He can not say whether the unicellular retort shape hair is also present in the male plant. He did not remember the floral formula of the female Canabis plant. The plant bears fruiting and flowering twigs which is only born by female plant. He admitted that the seed is not available in male plant. He did not remember how much quantity of the sample was taken for examination. He denied the suggestion that tetrahydro canabinol is present in male canabis plant. He did not weigh the sample while taking for the examination. Bhang is described by him as leaves and twigs of the lower portion of the plant. He can not say the leaves and twigs of the male plant is termed as Bhang or not. He can not say the tetra Hydro canabinol is present in the male plant or not. The thin layer chromatography was performed to detect the presence of Tetra Hydro Canabinol. He also can not say whether the Tetra Hydro Canabinol is present in all the parts of the male plant. He had also made chemical test of charas prior to this test. A court question was put to this witness, what is the compulsorily required test to arrive at 7 conclusion that particular substance is Ganja. To this witness replied as under :- a) Morphological test i.e. Presence of fruiting and flowering twigs.
b) Microscopic test to see the hair growth.
c) Chemical test to confirm the presence of chemical
ingredients which Tetra Hydro Canabinol.
A further court question was put to this witness whether in this case all the above said test were conducted?, to which the witness replied that Yes, all the three test were performed in this case. He further deposed that in report the morphological test is not mentioned but it was done in the laboratory. He has not mentioned about morphological test in the report being the practice. Morphological test means physical examination. He denied the suggestion that he deposed falsely.
13. PW12 is Inspector Pankaj Singh, Additional SHO, PS Malviya Nagar, New Delhi. He deposed that on 25.4.2001 he was posted as SI AATS/SD, Amar Colony. On that day at about 9.55 a.m. HC Ajit Singh informed through telephone that they have apprehended two persons who were in possession of Ganja. On this he along with constable Kehar Singh reached bus stand opposite Jawahar Lal Nehru Statidum where Head 8 constable Ajit Singh and another staff were present. HC Ajit Singh produced the accused Tapas Mistri along with a gunny bag. A Public witness Rajkumar was also present at the spot. Constable Naresh was sent to bring weighing machine. He brought the weighing machine from nearby locality and the Ganja was taken out from the ganny bag and same was weighed and was found to be 38 kg. Out of which 1 kg was taken out as a sample. The said 1 kg. Was kept in cloth pullanda and remaining Ganja was kept in said ganny bag. Both ganny bag and sample Ganja parcel were sealed with the seal of PS. FSL forms was filed up at the spot and he put his seal at the FSL form and the seal was handed over to Public witness Rajkumar. He seized the Ganja and sample Ganja and form FSL vide seizure memo Ex. PW2/B and same bears his signature at point C. He recorded the statement of HC Ajit Singh and made his endorsement Ex. PW2/F . He sent rukka along with case property, FSL form and the copy of seizure memo to PS for registration of the case and handed over the case property and accused to SHO of PS Lodhi Colony through HC Naresh. Accused Tapas Mistri was arrested vide his arrest memo Ex. PW2/H and same bears his signature at point A. He took the personal search of the accused vide Ex.PW2/C and during his cursory search,one wrist watch and Rs. 270/- were recovered. He prepared the report U/s. 57 of NDPS Act which is Ex. PW2/J and bears his signatures at point A and same was sent to ACP( Operations). He recorded the statement of witness and accused 9 was produced in the court on the same day and he was sent to J/c. Later on FSL report was collected and charge-sheet was prepared and filed in the court . Again said, result of FSL was collected and filed after the filing of charge-sheet. The witness correctly identified the case property. The case property i.e. Ganja and Ganny bag has already been exhibited as Ex. P-4 & P-5. At this stage, one khaki envelop bearing the case particular of the present case and the seal impression of the court on the envelop but the unsealed condition however the envelop bears some seal impression of court is produced by MHCM. The envelop contains Ganja and shown to the witness and the witness has correctly identified that it is same sample Ganja taken out from the Ganja recovered from the accused and the same is Ex. P-3. In the cross-examination he deposed that he joined the AATS South District in August1999 and again April'2000. He was present in the office at the relevant time and police officers are supposed to on duty 24 hours. HC Ajit Singh informed him on telephone at about 9.55 a.m. on 25.4.2001. He recorded DD entry No. 3 and departed with constable Kehar Singh on government motorcycle DL-1-SM-0553. He tried to contact his senior officers to inform regarding this information but he could not get contact with them. He did not informed to any other senior officer on that day. He reached at the spot 10.15 a.m. At that time HC Ajit, constable Naresh, HC Naresh,one public witness and accused were present. First of all FSL form was prepared by him i.e. First document at the spot. Up to 10 11.15 a.m. he completed all the formalities of documents and rukka was sent to PS. FSL form was printed on both side. Carbon copy of the said form was prepared by putting a plain paper underneath of original form. Lastly he recorded the statement of witnesses at spot i.e. Public witness Raj Kumar, HC Ajit, HC Naresh, constable Naresh. The weights were of 10 kg, 5 kg ,2 kg, and 1 kg. He weighed the Ganja at about 6 times. He had seen the public witness Rajkumar first time at the spot. However the said witness was a witness of case FIR NO. 144/01. Vol. Both the accused Tapas Mistri and Suresh Mandel were arrested at the same time in case FIR NO. 143 and 144. During 1994 he was posted in PS Sadar Bazar as SI and later on in Kotwali. He denied the suggestion that Rajkumar was ever made a witness in the year 1994 in case FIR NO. 53/94, dated 18.2.94, PS-Sadar Bazar, U/s. 399/402 IPC. I know another Rajkumar referred in document Ex. PW12/DA. The said Rajkumar is R/o 11311, Gali NO.Rehmat Wali, Motia Khan however present witness in case FIR NO.143/01 is another Rajkumar S/o Late Sh. Buddhan Lal, R/o 94, M.B Road, Khanpur, Delhi. He further deposed that the rukka was sent at 1.15 a.m. and Asal Tehrir along with FIR came back with constable Naresh at about 12.30 p.m. The site plan was prepared by him. The accused was arrested at about 12.30 p.m. When I reached at the spot , the accused was standing with police officials and case property. He also tried to contact several passersby to join as a witness but they all refused to the same. Bus had already left by 11 the time he reached at the spot and later on driver and conductor could not be contacted. The investigation proceedings was conducted at the spot against the accused Tapas Mistri and Suresh Mandel at the same time. Most of the witnesses are common in both the cases. The witness Rajkumar was briefed regarding the case by HC Ajit Singh but his statement was recorded by him. He denied the suggestion that no recovery was made from the accused on that day and he was not present at the spot. He further denied the suggestion that a false case was planted on the accused. He further denied the suggestion that accused were carrying Chili from AndhraPradesh and sell in Delhi and accused were arrested with chili and Ganja was planted by the IO in the present case.
14. Thereafter the statement of accused U/s. 313 Cr.P.C. was recorded. In that statement accused Tapas Mistry stated that he is innocent and have been falsely implicated in this case. He was lifted from outside Nizamuddin Railway Station. Police had already kept 2 persons in the lock up, out of them one was having amputated hand, was let of and he was falsely implicated in this case.
15. I have heard the Ld. Counsel for the accused and Ld. APP for State and perused the record carefully.
1216. Since prosecution has proved that 38 Kilogram narcotic substance was recovered in the presence of public witness Rajkumar, all other formalities were also complied by the prosecution like proper sending the case property to CFSL, preparing the report U/s. 57 of NDPS Act, giving the notice U/s. 50 of NDPS Act etc. It is held that the accused was found in possession of 38 Kilogram of substance against the law.
17. Now the question remains is what was the substance of 38 Kilogram. As per definition of Ganja, the Ganja is :-
Ganja, that is , the flowering or fruiting tops of th cannabis plant ( excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be kown or designated, and.
Whereas as per FSL report and as per the statement of PW-11 is Sh. S.K. Singhla, Senior Scientific Officer, it was found to contain vegetative material, in compressed form. It can't be said that entire 38 Kilogram of substance was Ganja as defined under the Act. More-so, this case pertains to 25.4.2001. In these circumstances of the matter, the accused is convicted for the offence of possessing of illegal Ganja. Since prosecution has failed to prove what was the qnantity of actual Ganja in the 13 said substance, he is convicted for the offence punishable U/s. 20 of the NDPS Act.
ANNOUNCED IN THE S.N. Gupta
OPEN COURT ON 17th Addl. Sessions Judge
DAY OF APRIL'2007 New Delhi
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IN THE COURT OF SHRI S.N. GUPTA : ADDL. SESSIONS JUDGE PATIALA HOUSE COURTS : NEW DELHI.
S.C. No. : 10A/06 FIR No. : 143/01 PS : Lodhi Colony U/s : 20 NDPS Act State Vs. Tapas Mistry ORDER ON SENTENCE
Vide my separate judgment of today i.e. 17.4.2007 the accused Tapas Mistry is convicted for the offence punishable U/s. 20 of NDPS Act.
In this case the offence was committed on 25.4.2001 and as per the law applicable at that time, the maximum punishment provided was 5 years and a fine of Rs. 50,000/-. However after amendment in the year 2.10.2001 the offence has been categorised as - Smaller quantity, more than small but less then greater quantity and commercial quantity. Though commercial quantity has been defined as 20 kilogram.
Since in this case what was the actual quantity of Ganja remains in dispute. More-so, as per the law applicable at that time, the maximum 15 punishment was 5 years and a fine of Rs. 50,000/-. In these circumstances of the matter, I award the accused sentence for the period of 5 years and a fine of Rs. 18,000/-. In default of payment of fine SI 3 months.
As per record this accused was arrested on 25.4.2001 and was released on bail 20.11.2006. Since he has already remained in J/c for more than 5 years and completed the maximum punishment of 5 years and fine has been deposited by him vide receipt No. 931871, dated 17.4.2007 so his bail bonds are cancelled and surety stands discharged.
File be consigned to record room.
ANNOUNCED IN THE S.N. Gupta OPEN COURT ON 17th Addl. Sessions Judge DAY OF APRIL'2007 New Delhi