Delhi District Court
Fir No. 08/2001 St vs . Mohd. Alam ; Ps: Kamla Market on 28 June, 2011
Page no. 1/10
FIR no. 08/2001 St vs. Mohd. Alam ; PS: Kamla Market
IN THE COURT OF MS. TYAGITA SINGH: METROPOLITAN MAGISTRATE
(CENTRAL)05, DELHI
STATE VS. Mohd. Alam
FIR NO: 08/2001
P. S. Kamla Market
Date of institution of case : 24.04.2001
Date on which case reserved for judgment : 12.05.2011
Date of judgment : 28.06.2011
Advocates appearing in the case :
Sh. Vakil Ahmad, Ld. APP for State
Sh. Y.S. Chaudhary, counsel for accused
JUDGEMENT U/S 355
Cr.P.C
.:
a) Date of offence : 16.03.2001
b) Offence complained of : U/S 21 NDPS Act
c) Name of complainant : ASI U.R. Khan
d) Name of accused, his parentage, : Mohd. Alam
local & permanent residence S/o Sh. Lal Mohammad
R/o Village Usaita,
Distt. Badayun, UP
e) Plea of accused : He is falsely implicated.
f) Final order : He is convicted.
BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. Brief facts of the case are that the present FIR was lodged on the statement of ASI U.R. Khan, PS Narcotics Branch, Delhi dated 17.03.2001 that on the night of 16.03.2001 at about 9:30 PM, one secret informer came to police station, Kamla Market Page no. 2/10 FIR no. 08/2001 St vs. Mohd. Alam ; PS: Kamla Market and informed him that one person who is residents of Badayun, UP will come to Delhi to supply smack to some customers at about 10:30 to 11 PM on DBG Road, Anand Parbat Bus Stand near Raju Fruit Juice Shop, hence ASI U.R. Khan informed SHO PS Kamla Market and produced the informant before him and the SHO informed the ACP through telephone who directed the SHO to enter the information in Rojnamcha Register and prepare raiding party for arrest of the persons. Hence, the information was entered in DD no. 8 and raiding party consisting of ASI U.R. Khan, HC Paramjit Singh, Ct. Dilawar Singh, Ct. Naresh under supervision of SHO and the raiding party went on Government Vehicle no. DL2CC2085 alongwith the secret informer at the spot. The vehicle was being driven by Ct. Vijay Kumar.
2. The passersby were requested to join the raiding party, but none joined and went away, hence at about 10:15 PM, the raiding party went at the spot and took their position. At about 11 PM, one person whose name was later confirmed as Mohd. Alam @ Nanhe came near the Raju Fruit Juice Shop and on the indication of secret informer, the raiding party stopped him and inquired from him that whether he was involved in business of supplying smack and he became fearful. So he was served notice u/s 50 NDPS Act and was informed that he can get his personal search conducted by some government official or Magistrate but he refused, so SHO Sh. S.P. Kaushik, after informing him about his designation, told him that he can take search of the entire raiding party but accused refused to take search of the raiding party, so ASI U.R. Khan conducted personal search of accused Mohd. Alam @ Nanhe and on his search, one blue colour polythene packet was obtained and on checking, it was found that it had aluminium foil in it, on which it was written 'Jaju Pachnalawachatpati Hajmedar Golian' and on opening it, light brown colour powder was found and on checking, it was found to be smack measuring 500 grams. Out of the recovered smack, two separate samples of 5 gram each were prepared in small polythene and made into pullanda MarkA and MarkB and remaining smack Page no. 3/10 FIR no. 08/2001 St vs. Mohd. Alam ; PS: Kamla Market contained in blue colour polythene was made into pullanda MarkC and form of FSL was filled and sealed by ASI U.R. Khan with seal of 'UR' and handed over to SHO who affixed his seal of 'SPK' on the FSL form as well as the pullandas and accused was arrested u/s 21 NDPS Act.
3. After lodging of FIR, further investigation was handed over to SI Attar Singh who prepared site plan at the pointing out of ASI U.R. Khan and arrested accused Mohd. Alam @ Nanhe and conducted his personal search and also recorded the disclosure statement of accused Mohd. Alam. The case property was deposited with HC Suresh Chand of PS Narcotics Branch and after taking police remand of accused Mohd. Alam on 17.03.2001 from court, he was taken to Bareili to arrest his coaccused as per his disclosure statement but the accused Mohd. Alam changed his disclosure statement and stated that his previous disclosure statement was wrong and smack was procured by him from one Ram Pal of village Dhirpur and not from Ram Singh of village Achandpur. Hence, accused was taken to PS Datta Ganj and after giving information to the SHO PS Datta Ganj and taking one Constable of PS Datta Ganj alongwith the police, they went to village Dhirpur but accused Ram Pal was not found at his address. Police party took accused Mohd. Alam to his village and conducted his house search but nothing incriminating was recovered from his house. Pointing out memo of house of accused Ram Pal at the instance of accused Mohd. Alam was prepared and accused Ram Pal was apprehended on the pointing out of accused Mohd. Alam. Notice u/s 50 NDPS Act was given to accused Ram Pal but he refused to get himself searched before a Gazetted Officer or a Magistrate and his refusal was recorded by SI Atar Singh. Accused Ram Pal was arrested and his personal search was conducted and disclosure statement was recorded in which he admitted to have sold smack to accused Mohd. Alam. His house search was conducted and a pocket diary was recovered from his wearing shirt which was seized by the police but nothing incriminating was recovered from his house. Report u/s Page no. 4/10 FIR no. 08/2001 St vs. Mohd. Alam ; PS: Kamla Market 57 NDPS Act was sent to ACP. On 26.03.2001, SHO sent Ct. Naresh Kumar with parcel markA and FSL form duly sealed with seal of 'ASY' and 'SPK' to FSL Malviya Nagar vide RC no. 22/21, to deposit the same for chemical analysis. After receiving FSL report and completion of investigation, chargesheet was filed in court. The Ld. Predecessor Court after supplying copies to the accused had committed the case to Ld. Special Judge, NDPS for further trial.
4. Charge u/s 21 NDPS Act was framed against accused Mohd. Alam and u/s 29 NDPS Act against accused Ram Pal by Ld. Special Judge, NDPS. During pendency of trial, accused Ram Pal pleaded guilty and he was convicted on the plea of guilt. Trial was conducted against accused Mohd. Alam and evidence was recorded in Special Court, NDPS. Thereafter, accused Mohd. Alam filed application for retesting the sample, to determine the percentage of Diacetylemorphine and the sample was sent again for retesting. Vide order dated 12.12.2005of Ld. Special Judge, NDPS, it was decided that the sample pullanda contains Diacetylemorphine to the extent of 0.034% as per FSL report which when calculated in respect of total quantity of smack recovered from accused, amounts to small quantity, hence, case was remanded to Ld. CMM and thereafter marked to the Ld. Predecessor Court for trial by the Magistrate as per provisions of NDPS Act.
5. In order to prove its case against accused, prosecution examined eight PWs on its behalf. PW1, Inspector S.P. Kaushik, SHO PS Narcotics Branch, Kamla Market stated that on 16.03.2001, he was posted as SHO PS Narcotics Branch and he was present in his office when ASI U.R. Khan approached him with a secret informer and informed that one Nanhe R/o of Badayun, UP who used to supply smack in Delhi would come at Raju Fruit Juice Shop, DBG Road, Karol Bagh near Anand Parbat to deliver smack to somebody between 10:30 PM to 11 PM. He stated that after verification of Page no. 5/10 FIR no. 08/2001 St vs. Mohd. Alam ; PS: Kamla Market information from the secret informer, he informed Sh. M.S. Chikara, the ACP (Narcotics Branch) on his telephone who ordered him to conduct raid immediately, hence ASI U.R. Khan lodged a report vide DD no. 28 at 9:30 PM and prepared raiding party including PW1 SHO and HC Paramjit, ASI U.R. Khan, Ct. Dilawar and Ct. Naresh Kumar and they all left the police station in government vehicle no. DL2CC2085 alongwith secret informer. PW1 further stated that ASI U.R. Khan tried to ask public persons to join raiding party but they refused and went away without telling their names and addresses, hence Ct. Vijay Kumar who was driving the vehicle was directed to park the vehicle at one side of Saraswati Marg and PW1 briefed the raiding party to put up Nakabandi. At about 11 PM, accused Nanhe came from Saraswati Marg side and he was apprehended just in front of Raju Fruit Shop. ASI U.R. Khan introduced himself to accused and served upon him notice u/s 50 NDPS Act as per legal requirement which is Ex.PW1/A but accused refused to be searched before Gazetted Officer or Magistrate and his refusal was recorded on the notice which is Ex.PW1/B. Hence, ASI U.R. Khan searched accused Nanhe and found blue coloured packet from his right hand, on opening which, another packet of aluminum foil was recovered on which on one side it was written 'panchnala gali' and on other side word 'Jaju' was written. On opening the aluminum foil, brown coloured powder was recovered which was found to be smack and on weighing, it was 500 gram smack, hence two samples of 5 gram each were separated into small polythene packet and converted into pullandas MarkA and B and remaining smack was put back in blue polythene alongwith aluminum foil and made into pullanda MarkC. After filling the FSL form in duplicate and after sealing all the pullandas with seal of 'UR' and 'SPK', the three parcels and FSL form were handed over to PW1 alongwith seizure memo Ex.PW2/A. HC Paramjit Singh was sent with rukka for lodging FIR and in the night of 16/17.03.2001 at about 2:30 AM, HC Paramjit Singh came back with SI Atar Singh at the spot who took over investigation and ASI U.R. Khan handed over all the documents and Page no. 6/10 FIR no. 08/2001 St vs. Mohd. Alam ; PS: Kamla Market accused to SI Atar Singh. SI Atar Singh prepared site plan on the pointing out of ASI U.R. Khan and also prepared arrest memo and personal search memo of accused which are Ex.PW1/C and D respectively. Accused Mohd. Alam @ Nanhe made disclosure statement Ex.PW1/E that he had received the smack from one Ram Singh of village Achandpur and he could get Ram Singh arrested, hence after depositing the case property with MHC(M) vide DD no. 33 Ex.PW1/F, police remand of accused was obtained and PW1 alongwith SI Atar Singh, HC Paramjit, Ct. Dilawar and Ct. Naresh alongwith accused left the police station for village Achandpur but when they reached Bareili, accused Mohd. Alam changed his disclosure statement and stated that he had procured the smack from one Ram Pal of village Dhirpur, hence his fresh disclosure statement Ex.PW4/A was recorded and the police party alongwith accused went towards village Dhirpur and reached PS Dattaganj and took one constable from there alongwith them to go to village Dhirpur where pointing out memo of house of Ram Pal was prepared at the instance of accused Mohd. Alam @ Nanhe which is Ex.PW4/C. Accused Ram Pal was arrested and his house search was conducted but nothing incriminating was recovered from his house. Notice u/s 50 NDPS Act was given to accused Ram Pal is Ex.PW4/D and his refusal on the notice is Ex.PW4/E. Arrest memo and personal search memo of accused Ram Pal is Ex.PW4/H and I and his disclosure statement is Ex.PW4/F in which he admitted to have sold smack to accused Mohd. Alam and also got recovered a pocket diary from his wearing shirt hanging on a nail (kundi) in his house, which was seized vide seizure memo Ex.PW4/G. PW1 further stated that report u/s 57 NDPS Act to ACP was sent about arrest of both accused persons and Ct. Naresh Kumar was sent to FSL Malviya Nagar with sample parcel MarkA vide RC no. 22/21 for chemical analysis.
6. PW1 correctly identified both the accused persons in court and the sealed parcels and case property, which have been exhibited as Ex.P1 to Ex.P10. Articles of Page no. 7/10 FIR no. 08/2001 St vs. Mohd. Alam ; PS: Kamla Market personal search of accused Mohd. Alam and accused Ram Pal were exhibited from Ex.P 11 to Ex.P17. PW1 was duly crossexamined and discharged. PW2 ASI Paramjit Singh, PW4 Ct. Dilawar Singh and PW7 IO SI Atar Singh deposed on the same lines.
7. PW3 HC Suresh Kumar stated that on 17.03.2001, he was posted as MHC(M) PS Narcotics Branch Kamla Market and on that day Inspector S.P. Kasushik, the SHO of PS Narcotics Branch had deposited 3 sealed parcels alonwgith FSL forms having seals of 'SPK' and 'UR' on the parcels MarkA, B and C. PW3 exhibited the copy of entry at serial no. 126 in register no. 19. He further stated that on the same day, SI Atar Singh deposited the articles of personal search of accused, the entry of which was also made at the same serial no. and copy exhibited as Ex.PW3/B. PW3 stated that on 18.03.2001, SI Atar Singh again deposited a small dairy alongwith copy of seizure and articles of personal search of accused Ram Pal for which entry was made at serial no. 127 in register no. 19, copy of which is Ex.PW3/C. On 26.03.2001, sample parcels MarkA alongwith FSL form duly sealed with seals of 'UR' and 'SPK' were sent to FSL, Malviya Nagar through Ct. Naresh vide RC No. 23/21 and the copy of said entry at serial no. 126 is Ex.PW3/D and the sample was received back on 29.05.2001 and the entry is Ex.PW3/E. MHC(M) also exhibited the photocopy of original RC no. 23/21 as Ex.PW3/F and receipt of FSL on the back side of RC as Ex.PW3/G.
8. PW5 HC Kuldip Singh was the DO on the night of 16/17.03.2001 and he exhibited the copy of FIR as Ex.PW5/A. PW6 Sh. S.K. Singhla, Sr. Scientific Assistant from CFSL stated that on 26.03.2001, he had been marked one sealed parcel alongwith forwarding memo no. 206 dated 26.03.2001 alongwith specimen seal impressions 'UR' and 'SPK' for chemical examination. He stated that the specimen seal impressions were tallying with seal impressions on the parcels and the contents of parcels MarkA gave Page no. 8/10 FIR no. 08/2001 St vs. Mohd. Alam ; PS: Kamla Market positive test of Diacetylmorphine. He exhibited his report as Ex.PW6/A and identified his signatures thereupon at point A. PW8 is Ct. Naresh Kumar who stated that on 26.03.2001, he had taken the samples from MHC(M) alongwith FSL form vide RC no. 23/21 and deposited the same in FSL Office, Malviya Nagar.
9. All recovery witnesses correctly identified accused and case property in court. All the material PWs were duly crossexamined and discharged but no material inconsistency was found in crossexamination of the PWs. The PWs denied the suggestion that no contraband was recovered from possession of Mohd. Alam. They further denied the suggestion that they had not gone to the village of accused Ram Pal and all the proceedings were conducted in the police station. They further denied the suggestion that accused have been falsely implicated in the case.
10. During pendency of proceedings, accused Ram Pal pleaded guilty and he was convicted by Ld. Predecessor Court.
11. After closure of PE, statement of accused Mohd. Alam @ Nanhe u/s 313 Cr.P.C. were recorded. Accused preferred not to lead defence evidence, hence final arguments were heard and case was fixed for order for today.
BRIEF REASONS FOR DECISION AND DECISION THEREOF:
12. The perusal of above stated evidence reveals that the material recovery witnesses who apprehended the accused with smack have been duly examined and no material inconsistency has been found in their crossexamination. They have correctly identified accused in court. The case property i.e. The recovered smack has been duly Page no. 9/10 FIR no. 08/2001 St vs. Mohd. Alam ; PS: Kamla Market exhibited in court and the FSL report has also been exhibited by PW6 which gave positive test of Diacetylemorphine in the sample of smack. As per the second FSL report dated 30.11.2005 according to which the sample retested by FSL at the request of accused, was found to contain Diacetylemorphine @ 0.034% which after calculation as per the total quantity of recovered smack of 500 grams, comes out to 0.17 grams heroine (Diacetyle morphine) and has been termed as small quantity by the order of Ld. Special Judge NDPS Delhi, dated 12.12.2005. As per Section 21(a) of NDPS Act, the maximum punishment for possession / sale / manufacture / transport etc. of any manufactured drug or preparation in contravention of any provisions of NDPS Act is upto six months rigorous imprisonment or fine extending to Rs. 10,000/ or with both. As per Section 36A(a) of NDPS Act, all the offences under the Act punishable with imprisonment for a term of more than three years shall be triable only by Special court constituted by the government in this behalf. Hence, the present offence u/s 21 NDPS Act is triable by Magistrate, therefore, this court is competent to try and pass judgment in this case.
13. The discussion of above stated evidence reveals that prosecution has proved its case beyond reasonable doubt against accused Mohd. Alam. Hence, he is convicted u/s 21(a) NDPS Act.
ORDER ON SENTENCE Convict has been heard on quantum of sentence. The convict states that he is a poor person, hence he prays for leniency.
Perusal of file reveals that convict has already undergone more than four years in J/C from the date 17.03.2001 when he was arrested till 16.12.2005 when his bail bond was accepted and he was released on bail. He has already undergone more than four Page no. 10/10 FIR no. 08/2001 St vs. Mohd. Alam ; PS: Kamla Market years in J/C. In view of the fact that convict had undergone much more period in J/C than required even in case of maximum imprisonment u/s 21 (a) of NDPS Act, hence in view of special circumstances of the case, the condition of rigorous imprisonment is relaxed in this case and convict is sentenced to simple imprisonment for six months. Since, convict has already gone much longer period over and above six months in J/C during trial, hence, benefit of section 428 Cr.P.C. is granted to convict and sentence awarded today is set off against already undergone period during trial. After set off, no imprisonment remains due against convict, hence he is set at liberty. The case property be destroyed and destruction report be filed by the SHO in court. Copy of order be given dasti to convict. PB and SB of convict stands discharged. Original documents if any be released to convict and endorsement if any be cancelled. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ( TYAGITA SINGH ) TODAY ON 28th June, 2011 MM05(CENTRAL), DELHI