Delhi District Court
State vs . Sharafat Hussain on 7 August, 2012
FIR No.57/10 PS Crime Branch
IN THE COURT OF MS. ANU GROVER BALIGA: SPECIAL JUDGE
NDPS PATIALA HOUSE COURTS: NEW DELHI
SC No. 12/10
ID No. 021103R0209012010
FIR No. 57/10
PS: Crime Branch
State Vs. Sharafat Hussain
State Vs. Sharafat Hussain
S/o Sh. Fida Hussain
R/o Mohalla Gotia, Village Faridpur,
PSFaridpur, Distt.Bareilli (UP)
Date of Institution : 19.06.2010
Judgment reserved on : 25.07.2012
Date of pronouncement : 04.08.2012
JUDGMENT
1. The accused has been sent up for trial of the allegations that he was found in possession of 220 gms of Heroin on 27.04.2010, while he was standing at the main BusStand, PulPrahaladpur, New Delhi. Briefly stated the allegations in the chargesheet against the accused are as follows:
(a) On 27.04.2010 at about 9:00 AM, a secret informer came to the Office of Narcotics Cell and informed SI Satyavan that one Sharafat Hussain, R/o Faridpur, Bareilli, U.P. is indulging in supply of Heroin and SC12/10 Page 1 of 17 FIR No.57/10 PS Crime Branch that on 27.04.2010 in between 10:45 AM to 11:00 AM, he will be coming at the main BusStand PulPrahaladpur.
(b) The secret informer was produced by SI Satyavan before SI Vivek Pathak at about 9:45 AM who after satisfying himself about the information given by the secret informer, telephonically informed ACP S.R. Yadav about the same. The ACP is then stated to have given directions for an immediate raid.
(c) DD No. 15 was recorded in compliance of Section 42 NDPS Act and was produced before SHO Vivek Pathak and as per the directions of the SHO, SI Satyavan constituted the Raiding Team, consisting of himself, HC Mukesh and Ct. Sohan Pal and then collected his IO Bag, Field Testing Kit, Weighing Machine and proceeded alongwith the raiding team for the spot in Govt. Vehicle, bearing No. DL 1CJ 3481, which as driven by HC Kanwal Singh.
(d) After reaching the spot, SI Satyavan requested 45 passersby and 4 persons standing at the BusStand to join the Raiding Team but, none of them agreed for the same. The Members of the Raiding Team positioned themselves near the BusStand and at about 10:50 AM, it is asserted that a person wearing red check colored shirt and blue jeans came from the other side of the road. On the secret informer identifying him as suspect, the Raiding Team intercepted him, the IO introduced himself and the SC12/10 Page 2 of 17 FIR No.57/10 PS Crime Branch Members of the Raiding Team to him and on enquiry, the said person revealed that his name is Sharafat Hussain. He was then informed about his legal rights and was issued a Notice U/s 50 of NDPS Act and was made to understand that he has a legal right to be searched before the Magistrate or a Gazetted Officer. The accused refused to exercise the said right and his refusal was written on the Notice by SI Satyavan and the accused signed on the said refusal. At that point of time also, 1012 passersby were requested to join the investigations but, none agreed.
(e) Thereafter, SI Satyavan then conducted the search of the accused and from the right side pocket of Jeans worn by him, one transparent polythene, mouth of which was tied with a rubber band was recovered. On removing the rubber band i was found containing matiala colour powder, which on testing with field testing kit, gave positive result for heroin. The recovered heroin alongwith the polythene was weighed and its total weight came out to be 220 gms. Two samples of 5 gms, each were taken out from the recovered heroin and converted into pullandas which were then given Mark 'A' & 'B'. The remaining heroin was also converted into a cloth pullanda and given Mark 'C'. All the Pullandas were sealed by the IO with the seal of 'APS NB, New Delhi'. The impression of the seal was then affixed on the Form FSL, which was filled up by the IO. Seizure Memo was also prepared.
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FIR No.57/10 PS Crime Branch (f) The Rukka was prepared and was sent by Ct. Sohan Pal for
registration of FIR. At about 4:30 PM, SI Rajbir Singh came to the spot and he was narrated the facts of the case by SI Satyavan and the accused & the documents prepared were handed over to him. SI Rajbir Singh then inspected the site and prepared the SitePlan and also recorded the statement of HC Mukesh. After interrogating the accused he was then arrested and after completion of proceedings at the spot, the Raiding Team alongwith the accused went to PS Crime Branch, Nehru Place and deposited the personal search articles of the accused in the Malkhana. Thereafter, the accused was brought to Narcotics Cell, Shakarpur and was produced before SHO Vivek Pathak. On 28.04.2010, Special Report U/s 57 of NDPS Act was prepared. On 05.05.2010, the sample Pullanda of this case was sent to FSL, Rohini and after the Report from the FSL was obtained, the present chargesheet was filed.
2. On the basis of the material on record, charge was framed against the accused by the Ld. Predecessor of this court for the offence punishable U/s 21(b) of the NDPS Act. The prosecution in order to prove its case against the accused has examined 11 witnesses.
3. PW10 SI Satyavan, the main Investigating Officer, PW1 Ct. Sohan Pal and PW8 HC Mukesh being the members of the raiding team have more or less deposed on similar lines and have reiterated the contents of the SC12/10 Page 4 of 17 FIR No.57/10 PS Crime Branch chargesheet. As per their depositions, DD No. 15, in which the secret information was reduced has been exhibited as Ex. PW3/A, the Departure Entry DD No. 16, in which the departure of the Raiding Team from the PS was recorded has been exhibited as Ex. PW 10/A, Notice issued to the accused U/s 50 of NDPS Act has been exhibited as Ex. PW1/B, the refusal written on behalf of the accused on the said Notice has been identified at point 'X to X1' on Ex. PW1/B, the Seizure Memo prepared at the spot has been exhibited as Ex. PW1/A and the Tehrir prepared at the spot has been exhibited as Ex. PW10/B.
4. PW6 Insp. Kuldeep Singh has interalia deposed that on 27.04.2010, he was posted as SHO, PS Crime Branch and on that day, at about 2:50 PM, Ct. Sohan Pal produced before him, 3 Cloth pullandas Mark 'A', 'B' & 'C', one FSL Form and a carbon copy of Seizure Memo. As per the deposition of this witness, he put the FIR number and his seal 'KSY' on all the three cloth pullandas, the FSL form and the seizure memo and then got the said property deposited in the Malkhana by HC Chand Ram, MHC(M).
5. PW2 HC Chand Ram has inter alia deposed that on the instructions of Insp. Kuldeep Singh, he deposited the case property in the Malkhana and made the entry in this regard in Register No. 19. The relevant entry has been exhibited as Ex. PW2/A. This witness has also inter alia deposed that 'on 05.05.2010, he had sent one sealed sample pullanda alongwith the SC12/10 Page 5 of 17 FIR No.57/10 PS Crime Branch FSL Form to FSL, Rohini. The original MHC(M) Register was also produced in the Court.
6. PW7 Insp. Vivek Pathak has inter alia deposed that he was marked the further investigations of the case after registration of FIR. He has further deposed that on 28.04.2010 SI Rajbir Singh submitted before him the Special Report u/s 57 of NDPS Act. PW9 SI Rajbir Singh has inter alia deposed about the investigation carried out by him. As per his deposition, the SitePlan prepared by him at the spot has been exhibited as Ex. PW9/A. He has also inter alia deposed that he had recorded the statements of various witnesses in this case.
7. PW3 HC Om Prakash, Reader to the ACP had produced before the Court, the relevant entries that were made in the Register maintained in the office of ACP and as per the record produced by this witness, DD No. 15 and two Special Reports u/s 57 of NDPS Act were also produced before the ACP and the ACP had made his endorsement thereon. The endorsed copy of the aforementioned documents have also been produced before the Court. PW4 HC Jai Pal Singh is the Duty Officer, who produced copy of FIR and has proved the same as Ex. PW4/B. PW5 HC Rajinder has merely deposed that on 05.05.2010 on the instructions of SHO, he had received one sample Mark 'A' alongwith the FSL Form from the MHC(M) and had deposited the same in FSL, Rohini'.
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FIR No.57/10 PS Crime Branch
8. PW11 Dr. Madhulika Sharma, Asstt. Director, FSL Rohini has proved the Report prepared by her with respect to the analysis conducted by her with respect to the sample sent to FSL. The said Report has been exhibited as Ex. PW11/A and as per the said Report, the sample Mark 'A' was found to contain paracetamol, caffeine, phenobarbital, aceylcodeine, monoacetylmorphine and diacetylmorphine and the percentage of diacetylmorphine and phenobarbital were found to be 7.03 per cent and 56.3 per cent respectively.
9. The entire aforementioned incriminating evidence was put to accused and his statement u/s 313 Cr.PC was recorded. In the said statement, he has inter alia stated that he is a native of Faridkot, Barrielli and that on 27.04.2010, he had come to Delhi in search of a job and that while he was standing at the Prehladpur bus stand, he was apprehended by the police officials for no reason whatsoever and was then taken to PS Shakkarpur, beaten up and then made to sign some documents.
10. It is relevant to mention herein that on request of the accused that he was not in a position to engage a counsel of his choice, he was given Legal Aid Assistance and one Ld. Counsel Sh. Tahir Khan, Legal Aid Counsel has conducted on his behalf the crossexamination of the prosecution witnesses. The said Ld. Counsel however, was unable to advance final arguments on four consecutive dates due to some personal difficulty and SC12/10 Page 7 of 17 FIR No.57/10 PS Crime Branch finally this court had to appoint counsel Sh. Y.K. Saxena as amicus curie to assist this court during final arguments.
11. Ld. Counsel Sh. Y.K. Saxena after going through the judicial record has submitted that on the basis of the crossexamination conducted by the Legal Aid Counsel, the only discrepancy that has come to the fore in the case of the prosecution is that though signatures of two members of the raiding team PW8 HC Mukesh and PW2 Ct. Sohan Pal were found on the pullandas produced in the court, the said two witnesses have nowhere deposed that they had signed on the pullandas sealed and seized at the spot by the IO. Ld. Counsel has also stated that even the IO has not stated any such fact and nor is the fact of signing the pullandas mentioned in the statements of the said police officials tendered u/s 161 Cr.PC. He has submitted that if the said witnesses could depose specifically that they had signed on section 50 notice and on the seizure memo, had they actually signed on the pullandas on the spot, they would have specifically deposed in this respect also. His contention is therefore that all documents and pullandas were got signed by the said witnesses at the police station and that tampering of the case property in such facts cannot be ruled out. He has also submitted that the testimony of the main Investigating Officer shows that he did not make any sincere efforts to join public witnesses in the search and seizure proceedings and that it would be hazardous to SC12/10 Page 8 of 17 FIR No.57/10 PS Crime Branch convict the accused only on the basis of the deposition of the police officials.
12. In rebuttal to the said contention, Ld. APP for the State has submitted that the aforementioned ommission in the testimony of PWs Ct. Sohan Pal and HC Mukesh do not go to the root of the matter and that the deposition of all the prosecution witnesses clearly prove the case of the prosecution beyond reasonable doubt. She has also contended that the mere absence of public witnesses in the investigation is not fatal to the case of the prosecution and the conviction of an accused can be based solely on the deposition of the police officials/members of the raiding team in case their testimony is found credible and trustworthy.
13. I have carefully considered the submissions made by both the Ld. Counsels and have perused the entire record. As narrated hereinabove, the only contention made on behalf of the accused is with respect to the omission of PWs Ct. Sohan Pal and HC Mukesh in deposing about their signatures on the pullandas prepared on the spot. In the considered opinion of this court, the Ld. APP is perfectly right in contending that the said omissions do not go to the root of the matter and do not lead to an inference that the case property has been tampered with. It is also well settled law that police witnesses do not mandatorily require corroboration and even in the absence of public witnesses in the investigation, their SC12/10 Page 9 of 17 FIR No.57/10 PS Crime Branch testimony alone can be made the basis for the conviction of an accused, if the same is found credible and consistent with each other. In the present case, the accused in his statement given u/s 313 Cr.PC has admitted that he was apprehended by the police officials from the bus stand Prahladpur. In other words, the presence of the accused and the police officials at the spot is not disputed. Though the accused has disputed the recovery of any contraband from his person, evidence of PW10 SI Satyavan, PW1 Ct. Sohan Pal and PW8 HC Mukesh is found consistent about the recovery of a transparent polythene bag containing powdery substance from the right side pocket of the jeans worn by the accused. Nothing has come in their crossexamination to shake their testimony about the said recovery. Evidence of PW10, PW1 and PW8 is also consistent on the fact that the total weight of the said powder was found to be 220 gms and two samples of 5 grams each were taken out from the recovered contraband at the spot, which were converted into two separate pullandas, Mark A and Mark B and that remaining contraband was converted into a third pullanda, Mark C and that all the pullandas were sealed by PW10 with his seal of 'APS NB, New Delhi' at the spot. It is also established by the deposition of PW10, PW1 and PW8 that FSL form was filled at the spot by PW10 on which he had put his seal impression 'APS NB, New Delhi'.
14. With respect to compliance of section 50 of NDPS Act, testimony of SC12/10 Page 10 of 17 FIR No.57/10 PS Crime Branch PW10 corroborated by PW1 and PW8 has remained unshaken that prior to search of the accused, he was duly informed about his legal right to exercise the option to give his search before a Gazetted Officer or the Metropolitan Magistrate. Nothing has come in the crossexamination of these witnesses to create any doubt about their testimony about this aspect. Therefore, the evidence on record shows that conditions laid down in section 50 of NDPS Act were duly followed by PW10, an authorized and empowered officer, before conducting body search of the accused.
15. The compliance of section 52, 55 and 57 of the NDPS Act appears to have also been done by the Investigating officials. As per the deposition of PW1 he had handed over the three sealed pullandas alongwith form FSL, copy of seizure memo to SHO Inspector Kuldeep Singh in his office, who after checking them affixed his seal of 'KSY' and mentioned the FIR number thereon. He has been corroborated by PW6 Inspector Kuldeep Singh on the above fact, who has deposed that after affixing his own seal on the sealed pullandas of the case property and form FSL, he had handed over them to MHC(M) for depositing in the malkhana with respect to which entry was made by MHC(M), PW2 HC Chand Ram in register no. 19 vide Ex. PW2/A. PW6 has also identified his signatures at point X in this entry and has deposed further that he had lodged DD no.15 in this regard and the same has been proved as Ex. PW6/A. SC12/10 Page 11 of 17 FIR No.57/10 PS Crime Branch
16. As per the testimony of the prosecution witnesses, after registration of FIR, investigation was assigned to PW9 SI Rajbir Singh. The testimony of this witness about preparation of the site plan Ex. PW9/A, arrest of the accused vide memo Ex. PW8/A and his personal search vide memo Ex. PW8/B has gone unrebutted. Evidence of PW10 and PW9 SI Rajbir Singh has gone unassailed on the fact that separate reports about recovery of contraband and arrest of the accused under section 57 of NDPS Act were sent by them to the senior officers vide Ex. PW3/B and Ex. PW3/C respectively.
17. Testimony of PW2, HC Chand Ram, MHC(M), that samples were not tampered with while the same were in his custody and the similar deposition of PW5 that sample pullanda bearing the seals of 'KSY' and '7 APS NB Delhi' alongwith form FSL which was received by him from MHC(M) for depositing at FSL Rohini, remained untampered with while in his custody have also not been seriously challenged. The depositions of PW5 and PW2 have been corroborated by the documentary evidence Ex. PW2/A, according to which a sealed pullanda Mark A bearing seals of 'KYS' and '7 APS NB Delhi' was handed over to PW5 by PW2 alongwith form FSL on 05.05.2010 for depositing at FSL vide RC no. 158/21 (Ex. PW2/A). Thus there is no missing link pointed out by the defence which can lead to an inference that the case property was tampered with while in SC12/10 Page 12 of 17 FIR No.57/10 PS Crime Branch the custody of the investigating agency.
18. The report of the FSL with respect to the sample sent to it has been proved by PW11 Dr. Madhulika Sharma, Assistant Director (Chemistry), Forensic Science Laboratory as Ex.PW11/A. As per this report, the sealed parcel Mark A, bearing the seals of 'KSY' and '7 APS NB Delhi', was found intact and the seals thereon tallied with the specimen seals as per forwarding letter (FSL form) and it was found containing approximately 6.2 grams brown colour powdery material with some pink colour coarsed particles in a polythene. The report further has made it clear that on the basis of chemical tests, chromatography and instrumental methods, the sample substance was found containing, apart from caffeine, paracetamol, 7.03% "diacetylmorphine" and 56.3% of phenobarbital.
19. The evidence discussed hereinabove clearly proves beyond doubt that accused was found in possession of 220 gms of powder/substance which on being tested has been reported to be an illicit drug. No doubt, Ld. Counsel Sh. Yogesh Saxena has rightly contended that in view of the law laid down by the Hon'ble Supreme Court in its judgment pronounced in State of Uttaranchal Vs. Rajesh Kumar Gupta 2006 Drug Cases (Narcotics) 623, it is to be held that despite the fact that accused has been found in possession of Phenobarbital, he cannot be held guilty for an offence under the NDPS Act for possessing phenobarbital, as the said drug SC12/10 Page 13 of 17 FIR No.57/10 PS Crime Branch is not mentioned in the schedule to the NDPS Rules, however taking into consideration that the sample substance has also been found to contain 7% of Diacetylmorphine, it is clear that the substance recovered from the accused contained a psychotropic substance, namely heroin/ diacetylmorphine and that he can be held guilty for possessing the same under the NDPS Act.
20. In view of the discussion hereinabove, this court is of the considered opinion that on the basis of the evidence on record, it is to be held that the accused is guilty of committing an offence u/s 21(b) of the NDPS Act. Hence, the accused stands convicted for the said offence.
21. To come up for arguments on sentence on 07.08.2012. Announced in open Court on this 4th day of August, 2012 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House : New Delhi SC12/10 Page 14 of 17 FIR No.57/10 PS Crime Branch IN THE COURT OF MS. ANU GROVER BALIGA : SPECIAL JUDGE NDPS PATIALA HOUSE COURTS, NEW DELHI FIR No. 57/10 PS Cr. Branch State vs. Sharafat Hussain ORDER ON SENTENCE Present: Ms. Sushma Badhwar, Ld. APP for the State.
Convict from J.C. Ld. Defence Counsel Amicus Curie Sh. Y.K. Saxena.
The accused in the present case has been held guilty by this court vide order dated 4/8/2012 for the offence punishable u/s 21 (b) of the NDPS act.
Ld. APP for State has prayed that the accused be sentenced to imprisonment for the maximum period provided under the NDPS Act as the convict was found in possession of 220 grams of heroin. She has submitted that the offences relating to narcotic drugs and psychotropic substance have a great impact on the social order and the health fabric of the entire society and that therefore a stern sentence should be imposed upon the convict.
Ld. Defence Counsel Sh. Y.K. Saxena on the other hand has submitted that the accused is a very poor person and that due to his financial SC12/10 Page 15 of 17 FIR No.57/10 PS Crime Branch difficulties he was even unable to arrange for an Advocate to represent him and that he was granted legal aid by this court. The convict present in the court submits that he has three children and his youngest son is only 4 years old. He submits that his parents and his family reside in his native village Faridpur and they are small time embroidery workers and that he was the sole earning member of his family. Ld. Defence Counsel Sh. Y.K. Saxena has also vehemently contended that this court must take into account that though 220 grams of powder was recovered from the convict, only 7.03% thereof that is to say only 15.5 grams approximately was found to heroin. He therefore prays that a lenient view may be taken by this court and that the accused be imposed minimum sentence as provided under the Act.
I have carefully considered the submissions made by both the Ld. Counsel and ld. APP for the State.
Taking into consideration that the actual quantity of heroin recovered from the accused was only found to be about 15.5 grams and also taking into consideration the social and economic status of the accused and the fact that the convict has no previous antecedents I hereby sentence the convict to undergo to rigorous imprisonment for a period of two years and three months and to pay a fine of Rs. 10,000/ and in default thereof to undergo simple imprisonment for a period of two months. Convict be also given benefit of section 428 Cr.P.C. Copy of this judgment and sentence be SC12/10 Page 16 of 17 FIR No.57/10 PS Crime Branch given to convict. The case property be confiscated to the State after the expiry of period of appeal/revision. This file be consigned to record room. Announced in open Court on this 7th day of August, 2012 (Anu Grover Baliga) Special Judge NDPS : New Delhi Patiala House : New Delhi SC12/10 Page 17 of 17