Delhi District Court
Rakesh @ Shanker vs . State, 2014 (1) Jcc {Narcotic} 13; ... on 23 November, 2016
IN THE COURT OF SH. NARINDER KUMAR SPECIAL JUDGE,
NDPS02 (CENTRAL) : TIS HAZARI COURTS : DELHI
SC No.15/14
FIR No.18/2014
PS : Crime Branch
u/s 20 & 22 NDPS Act &14 Foreigner Act
Date of Institution: 26.05.2014
Date of Decision : 23.11.2016
State
Versus
Emmanouil Chatzakis @ Malano
S/o Sh. Apostolos
R/o Makry Gialos, Sitia, Greece
....................Accused
J U D G M E N T
Emmanouil Chatzakis, a Greek national, has been facing
trial for offences under Section 20 and 22 of Narcotic Drugs and
Psychotropic Substances Act (hereinafter referred to as the Act) & 14
of Foreigners Act. Accusation levelled against the accused is that on
19.02.2014, when apprehended on the basis of secret information, he was found in possession of 250 grams Charas and 140 square pieces containing LSD and weighing 3.4 gms, and that he being a citizen of Greece was found in India without any passport or visa.
FIR No. 18/2014 Pg.1 of-24
2. As per prosecution case, secret information was received against the accused by SI Satyaveer Singh of Crime Branch on 19.2.2014 at about 2:00 pm while he was present at Narcotic Cell. SI produced the secret informer before Inspector Sanjay Gade and the Inspector in turn informed ACP Zile Singh. DD No.20 was also recorded by the SI and its copy was produced before Inspector Sanjay Gade, who in turn communicated the same to the ACP. On the directions then issued, SI Satyaveer Singh constituted a raiding party consisting of himself, HC Dharmender, HC Shani Kumar and the secret informer. DD No.21 was recorded at the time the raiding party lef the Narcotic Cell.
The Raiding party reached the disclosed place i.e. Chelmsford Road near main gate, New Delhi Railway Station where, as per secret information, the accused was to come in between 3:45 to 4:00 pm for supply of charas and LSD.
As per prosecution version, at about 4 p.m, the accused reached near main gate New Delhi Railway Station. The secret informer pointed out towards the accused and then departed. That is how, the accused was apprehended.
As regards the proceedings conducted at the spot, case of the prosection is that firstly, notice u/s 50 of NDPS Act was served upon the accused, and its copy was delivered to him, but he opted to be subjected to search in absence of Magistrate or Gazetted Officer, as FIR No. 18/2014 Pg.2 of-24 per his reply to the notice. Thereupon, SI Satyaveer Singh took over a black colour bag from the accused. It was found containing 140 stamps having picture of Gautam Budh. SI Satyaveer removed one stamp from the sheet, tested its content and found that the same was LSD.
20 stamps were removed from the sheet. These were divided into two parts and turned into two parcels.
Remaining 120 stamps were turned into separate cloth parcel. SI Satyaveer sealed all these parcels with his seal, affixed impression of the seal on FSL Form and then handed over the seal to HC Dharmender.
The bag recovered from the accused was found containing black colour sticks. Small quantity removed from one of the sticks, when tested on the field testing kit, was found to be charas. The total weight of black colour sticks was 250 gms.
SI Satyaveer separated 20 gms of charas by way of sample, divided into two parts turned them into two cloth parcels. The remaining quantity of 230 gms was also turned into a cloth parcel. All these three parcels were sealed with the aforesaid seal collected by the SI from HC Dharmender. The SI affixed impression of seal on another FSL Form. Once again, he handed over the seal to HC Dharmender.
Rukka was prepared and sent to the police station through FIR No. 18/2014 Pg.3 of-24 Constable Shani Kumar and that is how, case came to be registered.
Ct.Shani Kumar also brought from the spot to the police station, aforementioned six parcels, two FSL Forms and carbon copy of seizure memo and produced the same before the Inspector. The Inspector in turn sealed the six parcels with his seal bearing impression VSS and affixed its impression on the FSL Form. He also recorded FIR number on these items and then deposited the same with the MHC(M).
SI Sumit Kumar took over investigation , after registration of the case, and reached the spot. On reaching the spot, he arrested the accused and conducted his personal search. He also prepared rough site plan of the place of arrest and recovery from the accused. On return to the Narcotic Cell, the accused was produced before Inspector Sanjay Gade. Reports u/s 57 of NDPS Act are stated to have been prepared by the two Sub Inspectors, put up before Inspector Sanjay Gade, who forwarded the same to the ACP.
Sample parcels and FSL Forms were sent to FSL. Contents of samples were analysed and, that is why, the expert submitted report. On completion of investigation, challan was put in court.
3. Copies of challan and accompanying documents relied on by the prosecution, were supplied to the accused free of cost.
FIR No. 18/2014 Pg.4 of-24
4. Charge for offences u/s 20, 22 of NDPS Act and 14 of Foreigners Act was framed against the accused . Since the accused pleaded "not guilty" and claimed trial, prosecution examined following witnesses : PW1 : Ct. Sandip Kumar To prove deposit of sealed parcels, FSL forms at FSL on 21.2.14 PW2 : HC Shambhu Nath Duty Officer PW3 : HC Maan Singh Reader to ACP Zile Singh PW4 : HC Jag Narain MHC(M).
PW5 : HC Dharmender Witness to recovery
PW6 : Inspector Sanjy Gade As regards compliance with provisions
u/s 42 & 57
PW7 : Ct.Shani Kumar Another witness to recovery
PW8 : Inspector Virender Singh Before whom the case property was
produced at Narcotic Cell for being
again sealed with his seal
PW9 : SI Satyaveer Singh First Investigating Officer of the case
PW10 : SI Sumit Second Investigating Officer of the
case
Ld. Addl. PP also tendered in evidence report Ex.PX and closed prosecution evidence.
Statement of Accused
5. When examined Under Section 313 Cr.P.C, the accused denied the entire prosecution version regarding his arrest and recovery. The FIR No. 18/2014 Pg.5 of-24 plea putforth by the accused is as under: "On that day, I did not visit Chelmsford Road. I was not apprehended from there. Rather, on 18.02.2014 at 10 am, I was present at Lord Krishna Roof Garden Restaurant, Pahar Ganj Main Bazar Street. SI Sumit Malik accompanied by two others came there and picked up me in presence of wife of the owner of the said restaurant. I was present at the restaurant and taking my breakfast when the Sub Inspector and his companion picked me up from there. They took me to a Police Station in the area of Malviya Nagar. I was not informed about any secret information against me. They took me on the pretext that they were to check my passport etc. I showed to them my emergency passport issued by Greece Embassy on 17.02.2014. The original passport issued to me by the said Embassy was valid up to sometimes in November/December, 2013. I lost that passport during trekking programme in the area in between Kalga and Pulga (Himachal Pradesh). In this regard I lodged a missing report with Police of Manikaran. I told SI Sumit about all these facts and also showed him the missing report got lodged by me. I was detained by the police.
FIR No. 18/2014 Pg.6 of-24 I have been falsely implicated. I may add that during the period of two days I was detained by the police, I was given beatings and forced by the police to put my signatures on certain papers I was not allowed t go through the contents of the papers and the police officials asked me not to worry at all."
Despite opportunity, accused has not led any evidence in defence.
6. Arguments heard. File perused.
Ld. Addl. PP has submitted that since the accused was found without any passport or visa when apprehended on 19.2.2014 in New Delhi, he made himself liable for the offence u/s 14 of Foreigners Act.
As regards the offence u/s 20 of the Act, the submission is that prosecution has fully established by way of oral and documentary evidence and the report given by the expert that the accused kept in his possession 250 gms of charas, and as such the accused is liable to be convicted for the said offence.
As regards recovery of LSD, submission of Ld.Addl. PP is that in view of the statements of the witnesses to the recovery coupled with the report of the expert, prosection has fully proved that the accused was found in possession of commercial quantity of this contraband, and as such he is liable to be convicted for the said offence.
FIR No. 18/2014 Pg.7 of-24 On the other hand, Ld. Defence Counsel has contended that the notice u/s 50 of NDPS Act served upon the accused is defective one being not in accordance with the law, the reason being that it was not specified therein that if he so required, police shall take him to the nearest Magistrate or Gazetted Officer. The contention is that in view of this defect in the notice, this is a case of noncompliance with the mandatory requirement of law and as such accused is entitled to acquittal. Ld. Counsel has referred to decision in cases titled as Rakesh @ Shanker Vs. State, 2014 (1) JCC {Narcotic} 13; Dilip & Anr. Vs. State of M.P., 2007 {1} JCC {Narcotics) 5; Vijaysinh Chandubha Jadeja Vs. State of Gujarat 2010 {4} JCC {Narcotics}
236.
7. As noticed above, case of prosecution is that it was on the basis of secret information received on 19.2.2014 at Narcotic Cell that the accused was apprehended from near New Delhi Railway Station and after service of notice under Section 50 NDPS Act when he was subjected to search, contrabands i.e. LSD and charas lying in bags were recovered from his possesssion. In this regard, prosecution has examined PW9 SI Satyaveer Singh, PW7 Constable Shani Kumar and PW5 HC Dharmender.
Secret information is received, recorded and communicated to FIR No. 18/2014 Pg.8 of-24 senior police officers
8. It is in the statement of PW9 that on 19.02.2014 at about 2 PM, while he was present at Narcotics Cell, a secret informer met him at his office and disclosed that one person namely Emmanouil Chatzkis of Greek, who used to indulge in supply of drug in Delhi and outside Delhi, would come in between 3.454 PM at Chelmsford Road, near main road, Reservation Center, New Delhi Railway Station, for supply of Charas and LSD and that in case raid was conducted, he could be apprehended.
Further, according to PW9the SI, he took the secret informer to Inspt. Sanjay Gade (PW6) at his office, whereupon the Inspector made inquiries from the secret informer and then apprised ACP Zile Singh who in turn directed for necessary action. In this manner, DD No.20, copy Ex. PW3/A was recorded and its copy was produced before Inspt. Sanjay Gade. The Inspector in turn forwarded the same to office of ACP (N&CP). PW6 Inspector Sanjay Gade has supported PW9 in this regard.
In the course of arguments, no submission has been put forth that provisions of Section 42 of the Act were not complied with. Even otherwise, as noticed above, prosecution has proved compliance with this statutory provision of law.
FIR No. 18/2014 Pg.9 of-24 Police party leaves for the disclosed place
9. According to SI Satyaveer Singh, he constituted a raiding party consisting of HC Dharmender (PW5), HC Shani Kumar (PW7) and the secret informer. All of them left the office, vide DD No.21, at about 2.45 PM by private car no. DL3CCA2425 driven by Ct. Sudhir.
According to PW9, on the way, he asked persons from the public to join the raiding party, but no one came forward. Even on reaching the spot, he asked 45 persons from the public to join the party, but no one came forward.
The vehicle was then got parked at a distance. According to PW9, he briefed the members of the party and they took positions. 56 minutes thereafter accused was seen coming from the side of Ansara Road. Secret informer pointed out towards the accused, as the concerned person and then left the spot.
According to PW9, on reaching the spot i.e. Chelmsford Road, near main gate, the accused stopped for about 7 minutes. When the accused was about to return, he (PW9) with the aid of the staff apprehended him.
PW5 and PW7 have deposed in line with the statement of PW9 regarding the manner in which the accused was apprehended on the aforesaid date, time and place.
During trial, witnesses identified the accused, as the said person so apprehended at the spot.
FIR No. 18/2014 Pg.10 of-24 No contradiction has been pointed out by learned defence counsel in the statements of the witnesses to the arrest and recovery.
Nonjoining of Independence witnesses
10. Learned defence counsel has contended that in this case no witness from public was associated in the party and there being no corroboration from independent witness, no reliance should be placed on the statements of police officials. In support of his contention, learned counsel has referred to the crossexamination of the witnessesPW5, PW7, PW9 and PW10.
It is in the statement of PW9 SI Satyaveer Singh that he had asked persons from the public present near police station Shakarpur, Minto Road and Chelmsford Road but none of them joined the party. He also asked 45 persons from the public on reaching the spot, but no one came forward.
In his cross examination, he stated that he did not issue any notice in writing to the persons who were asked to join the party and who refused to join the same. Further according to him, after the accused apprehended, he did not try to join any person from the public.
PW5 HC Dharmender has made statement in line with the statement of PW9 on the point of efforts made to join persons from the public, at Minto Road, Barakhamba Crossing and at the spot and FIR No. 18/2014 Pg.11 of-24 further that none of them joined the party. It is in his cross examination that near the Narcotic Cell office there was a canteen but no one was called from said canteen to join the party.
According to PW7 Ct.Shani Kumar, 57 persons had gathered at the spot but when the IO requested them to join the proceedings none of them came forward. In his cross examination, PW7 stated that IO did not call anyone from the canteen which is on the ground floor of Narcotic Cell. Further according to him, IO had requested persons from the public to join the party, even before giving notice u/s 50 NDPS Act but those persons at the spot refused to join. It may be mentioned here that Ld. Defence Counsel has not been able to point out even single contradiction in the statement of PWs. From their consistent statements on all the aspects including on the point of recovery, court finds that in the given facts and circumstances, nonjoining of witness from the public does not adversely affect the case of prosecution.
Service of Notice u/s 50 NDPS Act
11. In this case, it is in the statements of the witnesses that the accused was apprised of the secret information against him. Thereafter, he was served with notice under Section 50 of the Act.
PW9the SI deposed to have served upon the accused, notice U/s.50 NDPS Act Ex. PW5/A. Its copy was also delivered to the accused. According to PW5,7 and 9, the accused opted to be FIR No. 18/2014 Pg.12 of-24 subjected to search in absence of a Magistrate and gazetted officer vide reply Ex. PW5/B. He also refused to conduct search of the vehicle.
In Rakesh @ Shanker's case (supra), cited by Ld. Defence Counsel, it was observed that the appellant therein was not informed that he had a legal right to the effect that the bag being carried by him could be searched in the presence of a Magistrate or Gazetted Officer and that the manner in which he was informed did not amount to conveying the appellant that he had a legal right to be so searched in presence of a Magistrate or Gazetted Officer.
In Vijaysinh Chandubha's case (Supra), cited by Ld. Defence Counsel, Hon'ble Apex Court observed that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."
After going through the statements of the witnesses on the point of compliance with provisions under section 50 of the Act, FIR No. 18/2014 Pg.13 of-24 court finds that in this case SI Satyaveer Singh duly complied with these provisions by apprising the accused specifically that it was his legal right of being subjected to such in presence of Gazetted Officer or Magistrate and the accused after having understood the notice gave his reply in his own handwriting that he did not want to be searched before any Magistrate or Gazetted Officer. When the Sub Inspector informed the accused that arrangement could be made regarding exercise of his legal right and the accused opted not to exercise his legal right, court does not find any merit in the contention of Ld. Defence Counsel that the notice served upon the accused is defective in any manner.
Recovery of Contraband
12. According to PW9, the accused was holding a black colour bag in his right hand. He took over this bag from the accused, opened its zip and found a transparent polythene lying in it. Inside the transparent polythene, there was a card like sheet. He took out the sheet, checked it and found that there were 140 stamps having pictures of Gautam Budh. He removed one stamp from the sheet and tested it on the field testing kit, which revealed that it contained LSD. The entire sheet including the stamp removed, when weighed, was found to be of 3 grams 4 mg.
Further, as stated by PW9, he removed 20 stamps from FIR No. 18/2014 Pg.14 of-24 the said sheet, divided it into two parts, each consisting of 10 stamps turned them into separate cloth parcels which were given Mark A1 & A2. The remaining 120 stamps were also turned into a separate cloth parcel given Mark A. All these three sealed parcels were then with his seal bearing impression SSY. According to PW9, he also filled in FSL form and affixed impression of his seal on it. After use, he handed over the seal to PW5 HC Dharmender.
PW5 HC Dharmender has supported the prosecution version by stating about sealing of the 3 parcles and delivery of seal to him by the SI.
From the bag recovered from the accused, black colour sticks contained in a transparent polythene were recovered. According to PW9, he removed small quantity from one of the sticks, tested the same on field testing kit and found it to be Charas. The total substancecharas, when weighed was found to be 250 grams. PW9 also deposed that he separated 20 grams of quantity of charas from the total substance, divided this 20 grams of quantity into two parcels, kept the same in two separate transparent polythenes, turned them into two cloth parcels which were given Mark B1 & B2. The remaining quantity of 230 grams was also turned into a cloth parcel, given Mark B and then sealed with the aforesaid seal of SSY, after the same was collected from HC Dharmender. The other two parcels B1 & B2 were also sealed with the same seal. He affixed impression of FIR No. 18/2014 Pg.15 of-24 his seal on this second FSL form and then returned the same seal to HC Dharmender.
All the aforesaid six sealed parcels and two FSL forms were seized vide memo Ex. PW5/C. Statement of PW9 stands corroborated from the statements of the other two witnesses to the recovery and the documentary evidence in the form of seizure memo. Not even a single contradiction has been pointed out by Ld. Defence Counsel in the statement of the witnesses on the point of recovery of the contraband, the proceedings conducted at the spot while drawing samples and the steps taken to rule out possibility of tampering with the case property.
Ld. Defence Counsel has submitted that as per prosecution version, secret information was received against the accused and in this situation, police could arrange for taking photograph or video recording of the arrival of the accused but no such step was taken, which creates doubt in the version of the prosecution.
In Ram Prakash Vs. State, 2014 (146) DRJ 629, the Hon'ble court has observed that with so many technological advances where satellite imagery to the smallest degree of precision of any location in the world is available, the Delhi police can no longer be excused for not improving its methods of gathering and presenting evidence. Considering that the raid was going to take place in a busy FIR No. 18/2014 Pg.16 of-24 place like the Old Delhi Railway Station parking lot, and in broad daylight, it should have been possible for the police to arrange for a videograph of the place of the raid itself, if not photographs.
But in present case, when there is no contradiction in the statements of PWs regarding place of arrest, place of recovery and proceedings conducted at the spot, nontaking of photographs of the spot or at the time of arrival of accused does not help the accused, particularly when PW SI Sumit Kumar has proved to have prepared rough site plan Ex. PW5/B depicting the place of recovery and arrest of the accused.
13. According to PW9, he prepared rukka Ex. PW9/A and handed over the same to Ct. Shani with the direction that he shall visit the police station and deliver the same to the duty officer for getting the case registered. He also deposed to have delivered to Ct. Shani the six sealed parcels, two FSL forms and carbon copy of seizure memo with the direction that the same were to be delivered to the SHO at the police station.
According to PW7, Ct. Shani he left the spot with these items at 7.10 PM. and reached the police station.
On the basis of rukka, sent by SI Satyaveer Singh, PW2 HC Sambhu Nath got recorded FIR Ex. PW2/A and in this regard, he appended endorsement Ex. PW2/B to the rukka. Ex. PW2/C is copy FIR No. 18/2014 Pg.17 of-24 of DD No.26, whereas Ex. PW2/D is copy of DD No.28. PW2 then deposed to have delivered original rukka and copy of FIR to Ct. Shani Kumar.
While at the police station, on the same day, according to PW7 Ct. Shani, he produced before PW8 Inspt. Virender Singh six sealed parcels, two FSL forms and carbon copies of seizure memo, referred to above.
According to PW8, the Inspector, he affixed his seal bearing impression VSS on all the six sealed parcels and also affixed its impression on the FSL forms. He then collected FIR number from the duty officer and recorded the same on all these items. He then called HC Jag Narain MHC(M) and produced before him all these items. The MHC(M) recorded entry in register no.19. Copy of relevant page depicting the relevant entry is Ex. PW4/A. PW8 Inspt. Virender Singh further deposed to have recorded DD No.27, copy Ex. PW8/A. Compliance with provisions of Section 57 of NDPS Act
14. As regards reports under Section 57 of NDPS Act, SI Satyaveer Singh deposed to have prepared report Ex. PW3/C and presented the same before Inspt. Sanjay Gade. PW Inspector Sanjay has supported this testimony of PW SI Satyaveer Singh.
SI Sumit also prepared his separate report U/s.57 of the FIR No. 18/2014 Pg.18 of-24 Act. Same is Ex. PW3/D. This report was also put up before Inspt. Sanjay Gade, as proved by the Inspector in his statement.
The Inspector has proved to have forwarded these reports under Section 57 of the Act to the office of ACP. PW3 HC Man Singh was serving as Reader to ACP Zile Singh. He has proved receipt of DD No.20 Ex. PW3/A on 19.02.2014 at the office of ACP and also copy of relevant page of the register, Ex. PW3/B. Further according to PW3, on 20.02.2014 reports Ex. PW3/C & D U/s.57 of NDPS Act were received at the office of ACP Zile Singh vide entry at sl.no.487 & 488. Copy of the relevant page is Ex. PW3/E. It is in the statement of PW3 that copy of DD No.20 as well as the two reports were put up before ACP Zile Singh and the ACP appended his endorsement thereto with his signatures.
From the oral and documentary evidence of these witnesses, the prosecution has proved compliance with provisions of Section 57 of the Act.
15. PW4 HC Jag Narain is the concerned MHC(M) who dealt with the case property. He has proved entries Ex. PW4/A and B recorded in register no.19 regarding deposit of the case property. He has also deposed about dispatch of two sealed parcels and two FSL forms from the Malkhana, on 21.02.2014, to FSL Rohini through Ct. Sandeep (PW1), vide RC, copy Ex. PW4/C. Ex. PW4/D is copy of FIR No. 18/2014 Pg.19 of-24 acknowledgment collected by Ct. Sandeep from FSL and delivered to PW4 HC Jag Narain. PW Ct.Sandeep has supported the statement of the MHC in this regard.
FSL report Ex. PX was received from FSL on 07.04.2014 alongwith some parcels. In the course of arguments, no argument has been advanced that there was any possibility of tampering with case property or that the contents of the sample sent to FSL were allowed to be tampered with. Court finds that steps were taken to rule out possibility of tampering with the case property and that the samples reached FSL with seals intact.
16. In this regard, the contention raised by Ld. Defence Counsel is that out of 140 stamps, only 10 stamps were sent to FSL which were found to contain LSD. The contention is that the Investigating Officer did not send any of the remaining stamps to the FSL for analysis and as such it cannot be said as to whether those contained any LSD or not.
In support of his contention, Ld. Counsel has referred to decision in case titled as "Gaunter Edwin Kircher Vs. State of Goa, Secretariat Panaji, Goa, (1993) 3 Supreme Court Cases 145 and Mohd. Ayub Vs. State of NCT of Delhi, 2016 (1) LRC 295 (Del).
17. Perusal of FSL report Ex.PX would reveal that only ten FIR No. 18/2014 Pg.20 of-24 square shaped printed papers strip was sent to FSL for analysis and it was found to contain LSD. No other strip was sent to FSL for analysis. For want of their analysis, in view of decision in Gaunter Edwin Kircher's case (Supra), it cannot be said that the remaining strips also contained LSD.
Furthermore, no opinion of the expert was called for so as to ascertain the parcentage of LSD or its purity on the strips. Therefore, it can not be said that the accused kept in his possession commercial quantity of LSD.But he can safely be said to have kept in possession small quantity of LSD, and made himself liable u/s 22 (b) of the Act.
18. As regards the other contraband said to have been recovered from the accused, the contention raised by Ld. Defence Counsel is that as per prosecution version, about 25 sticks being 250 gms of charas were recovered from the accused but the Investigating Officer removed only some quantity from two sticks/bars by way of sample and sent the same to FSL for analysis. The contention is that when no sample was drawn from remaining sticks/bars and their contents were not got analysed at FSL, it can not be said that those sticks/bars also contained charas.
As per prosecution version, from the same bag another transparent polythene was found containing black colour sticks and FIR No. 18/2014 Pg.21 of-24 small quantity separated from one of the sticks, when tested on the field testing kit, was found to be charas. Total weight of all the sticks with the transparent polythene was 250 grams. But by way of sample, SI Satyaveer Singh separated only 20 grams i.e. two stickseach of 10 grams. No sample was taken from the remaining sticks weighing 230 grams. Out of the two samples, only one came to be forwarded to FSL for analysis. When its contents were analysed by the expert of FSL, same were found to be charas. The fact remains that in absence of analysis of contents of the remaining sticks weighing 230 grams, it cannot be said that each of the remaining stick was of charas or contained charas. In this regard, learned defence counsel has rightly referred to the decision in Guntur Edwin's case (supra). In the decision relied on, Hon'ble Apex Court observed in the manner as:
"From the chemical analysis report along it cannot be presumed or inferred that the substance in the other piece weighing 7 gms. also contained charas. The Act applies to certain narcotic drugs and psychotropic substances and not to all other kinds of intoxicating substances. In any event in the absence of positive proof that both the pieces recovered from the accused contained charas only, it is not safe to hold that 12 gms. of charas were recovered from the accused. The prosecution has proved positively that charas weighing about 4.570gms. was recovered from the accused. The failure to send the other piece has given rise to this inference.
FIR No. 18/2014 Pg.22 of-24 To obviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized. If it is not practicable in a given case to send the entire quantity then sufficient quantity by way of samples from each of the packets or pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law."
19. In view of the above discussion and the well settled law, this court finds that prosecution has failed to prove that the remaining sticks weighing 230 grams were of charas or contained charas, and what the prosecution has proved is that 10 grams of charas analysed at FSL was recovered from the accused on 19.2.2014. In this way, by keeping in his possession small quantity of 10 grams of charas, accused can be said to have committed an offence under Section 20(b)(ii)(A) of the Act.
As regards the offence under Section 14 of Foreigners Act, prosecution has proved that the accused was found in India without any passport or visa. Accused has failed to prove that he had any valid passport or visa to stay in India as on 19.2.2014. As per the two letters recovered on personal search of the accused, at the time of his accused on 19.2.2014, he was permitted by the Embassy to travel to Greece within one month from 17.2.2014. Even if these two letters FIR No. 18/2014 Pg.23 of-24 are taken into consideration, the same do not help the accused, the reason being that his stay in India as on 19.2.2014 was illegal. So, he made himself liable for an offence under Section 14 of Foreigners Act.
CONCLUSION
20. In view of the view discussion, accused is held guilty for offences under Section 20(b)(ii)(A) and Section 22(b) of the Act for having kept in possession small quantity of two contrabands i.e. LSD and charas, and also for an offence under Section 14 of Foreigners Act for having remained in India on 19.2.2014 without any passport or visa.
He is therefore convicted for these three offences. Be put up after some wait to hear the convict on the point of sentence, as requested.
Announced in open court on 23.11.2016 (NARINDER KUMAR) SPECIAL JUDGE2 NDPS ACT:(CENTRAL DISTRICT) THC:DELHI: 23.11.2016 : 23.11.2016 FIR No. 18/2014 Pg.24 of-24