Delhi District Court
State vs Upender Singh on 6 July, 2011
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus Upender Singh
S/o Sh Ramayana Singh
R/o Village Balua Tola,
PS Jadupur, District
Gopalganj, Bihar.
SC No. 40A/09
FIR No. 14/09
U/S: 20 NDPS Act
PS : Saket
Date of institution : 08.06.2009
Date of reserving judgement : 04.07.2011
Date of pronouncement : 06.07.2011
J U D G M E N T
The accused has been sent to face trial by the SHO PS Saket on allegations that on 10.01.2009 at about 5.20 PM he was apprehended from near bus terminal, Lado Sarai, MB Road, New Delhi, when he was found to be in possession of 25 KG of Ganja, which is a ' c ommercial quantity' of the above contraband substance, in contravention of the provisions of the NDPS Act.
2. The prosecution story, in brief, is that on SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 2 10.01.2009 at about 5.20 PM the police party had spotted two persons holding one plastic bag each on their shoulders while coming from the side of Lado Sarai bus terminal on MB Road. On seeing the police party, the above persons had turned back and having suspicion they both were stopped and apprehended by the police party and their names were disclosed to be the accused Upender Singh of this case and one Lavlesh Kumar. On checking of the above plastic kattas being held by them on their shoulders, the katta of above Lavlesh Kumar was found to be containing two plastic packets, the contents of which were identified as Ganja. The plastic katta being held by the accused Upender Singh was also found to be containing three similar packets containing Ganja. Intimation was given by the police officials apprehending the above two accused at the local police station and SI Gagan Bhaskar and SI Dalip Kumar had reached at the spot, alongwith one Ct. Surender.
3. The proceedings with regard to the accused Upender Singh were conducted by SI Dalip Kumar and anticipating the recovery of some further contraband substance from the above accused, he had also served a notice U/S 50 NDPS Act upon the accused, but nothing incriminating could be recovered further from him. The total weight of the above Ganja recovered from the accused Upender Singh was found to be 25 KG, i.e. 5 KG in one packet and 10 KG each in the other two SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 3 packets, in the soft plate form (sillinuma form). The proceedings with regard to the drawing of samples, preparing pullandas of the samples and of the remaining case property and their sealing and seizure etc. were conducted at the spot and the case property and a rukka was sent to the PS for deposit of the case property in the malkhana, through the SHO, and registration of a case, resulting into the registration of this FIR NO. 14/09 against the accused Upender Singh. A separate case vide FIR NO. 13/09 was also registered against the other accused Lavlesh Kumar and the same was investigated separately by the other SI Gagan Bhaskar.
4. A chargesheet for the offence U/S 20 of the NDPS Act was filed against the accused Upender Singh in this court on 08.06.09 and cognizance thereof was taken. A prima facie case for offence U/S 20 (b)(ii)(C) of the NDPS Act was found to had been made out against the accused and hence a charge for the said offence was also framed against him by this court on 10.09.09, as the above quantity of Ganja possessed by the accused was a ' c ommercial quantity' under the said Act, to which the accused had pleaded not guilty and claimed trial.
5. The prosecution in support of its case has examined total 12 witnesses on record and their names and the purpose SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 4 of examination etc. is being stated herein below :-
6. PW1 HC Suresh Kumar is the duty officer of this case and he has proved on record the FIR of this case recorded by him as Ex. PW1/A. He has also stated that he had made one corresponding entry at serial no. 20A in the DD register in this regard and an endorsement regarding the same was also made on the rukka. He has further proved on record one DD No. 15A Ex. PW1/B recorded by him regarding the apprehension of the accused persons. He has also brought on record two other DD NOs. 23B and 24B recorded at the PS regarding the departure of HC Giriraj and his staff and HC Pradeep and his staff respectively from the PS for the spot of apprehension of the accused persons as Ex. PW1/C and PW1/D respectively.
7. PW2 HC Kuldeep was working as MHC(M) in the PS on the day of commission of the offence and he has stated that on that day one pullanda and three samples, sealed with seals of ' PS ' and ' DK ' , were deposited with him by Inspector Pankaj Singh vide entry at serial no. 65 of Register No. 19. On the same day, SI Dalip Kumar had also deposited with him the personal search of the accused Upender Singh containing a cash amount of Rs. 130/-, one key, one wrist watch of the accused and the notice U/S 50 of the NDPS Act. On 30.01.09 he had sent the three sample SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 5 pullandas to FSL, Rohini through Ct. Mehmood Khan vide RC No. 37/21/09 and on 04.05.09 the same were received back by him through Ct. Jagdeep, alongwith the FSL result. The relevant entry of his register no. 19 regarding the deposit and movement of the case property and sample pullandas has been proved on record by him as Ex. PW2/A.
8. PW3 Ct. Satish Kumar is a member of the above police team which had apprehended the accused Upender Singh and his above associate Lavlesh Kumar with the above Ganja. However, he was instrumental in apprehending the above Lavlesh Kumar with HC Giriraj and had participated in the investigation conducted against accused Lavlesh Kumar only and is not material enough as far as the further investigation conducted against the accused Upender Singh is concerned.
9. PW4 ASI Bijender Singh has produced the original information U/S 57 NDPS Act received in the office of the then ACP, Hauz Khas. The above information Ex. PW4/A was received in the office of the ACP on 12.01.2009 and was diaried at serial no. 135 of the diary register, the relevant entry of which has been proved on record as Ex. PW4/B.
10. PW5 Ms Anita Chhari, Senior Scientific Assistant SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 6 (Biology), FSL, Delhi has examined the above samples of this case vide her report Ex. PW5/A.
11. PW6 Ct. Surender Singh had reached the spot of apprehension of the accused alongwith SI Dalip and SI Gagan Bhaskar on receiving information about the apprehension of the accused Upender Singh and his above associate with Ganja. He has deposed regarding the handing over of the custody of accused Upender Singh by HC Pradeep to SI Dalip Kumar and the investigation conducted by SI Dalip Kumar at the spot. He has specifically deposed regarding the service of the notice U/S 50 NDPS Act Ex. PW6/A by SI Dalip Kumar upon the accused Upender Singh and his reply Ex. PW6/B to the same. He has also deposed regarding the process of weighing of the Ganja of the above three packets/pieces recovered from the accused and their weight being 5 KG, 10 KG and 10 KG respectively. He has further deposed regarding the taking out of samples of 1 KG each from the above three packets and the preparation of separate pullandas of the samples and of the remaining case property and sealing thereof with the seals of ' D K ' of SI Dalip Kumar, filling up of form FSL and affixation of the above seal thereon and the seizure of the above pullandas and the FSL form vide seizure memo Ex. PW6/C. He had then taken the rukka, alongwith the above pullandas of the samples and the remaining case property, FSL form and a copy of the seizure SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 7 memo to the PS and had handed over the rukka to the duty officer and the pullandas and documents to the SHO. It is also deposed by him that after getting the case registered at the PS, he had returned back to the spot and had handed over the original rukka and a copy of FIR to SI Dalip Kumar. He has also deposed about the arrest of the accused vide memo Ex. PW6/D and the conduction of his personal search vide memo Ex. PW6/E, in which the notice U/S 50 NDPS Act, a cash amount of Rs. 130/-, one key and one wrist watch were recovered. He has also identified the above plastic bag as Ex. P1, the remaining Ganja of the above three packets as Ex. P2 collectively, the remnants of the above three samples as Ex. P3, P4 & P5 and the original notice U/S 50 NDPS Act recovered in the personal search of the accused as Ex. PW6/F and has also identified the accused.
12. PW7 Ct. Mehmood Khan had taken the above sample pullandas to FSL, Rohini on 30.01.2009 vide RC No. 37/21/09 from the malkhana and after depositing the same with FSL, Rohini, he had handed over the receipt thereof to the MHC(M).
13. PW8 Ct. Jagdeep (wrongly typed as Jagdish at the time of recording of his statement) was deputed to collect the sample pullandas and the result from FSL, Rohini on 04.05.09 and after bringing the same he had handed over it SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 8 to the MHC(M). He has stated that so long as the same remained with him, the seals of the parcels were not tempered with.
14. PW9 Inspector Pankaj was posted as SHO of PS Saket and he has stated that on 10.01.09 at about 9.35 PM Ct. Surender had come to the PS and had handed over to him a copy of the seizure memo and four sealed parcels, sealed with the seals of ' D K ' , alongwith the FSL Form bearing the same seal of ' D K ' . He had ascertained the number of FIR from the duty officer and had put it on the pullandas and the seizure memo and after affixing his own seal of ' P K ' , he had deposited the above pullandas, FSL Form and copy of seizure memo in the malkhana and had also made one DD entry No. 20A regarding the same. Subsequently, he had also forwarded the special report U/S 57 NDPS Act Ex. PW4/A submitted by SI Dalip Kumar to the area ACP.
15. PW10 HC Pradeep Kumar is the person who had apprehended the accused Upender Singh on the above day and time and at the above said place and with the above contraband substance. He has deposed about the arrival of SI Dalip Kumar and Ct. Surender etc. at the spot and has also deposed likewise PW6 Ct. Surender Singh regarding the service of the above notice U/S 50 NDPS Act upon the accused, the process of drawing of samples and the sealing SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 9 and seizure etc. of the sample pullandas as well as of the case property and sending the same to the PS. It is on his statement Ex. PW10/A that the IO SI Dalip Kumar had endorsed the rukka of this case and had sent the same to the PS through PW6. He has also deposed likewise PW6 regarding the arrest and personal search etc. of the accused and has also stated that the site plan Ex. PW10/B was prepared by SI Dalip Kumar at his instance. He is also a witness to the above notice U/S 50 NDPS Act Ex. PW6/F (carbon copy is Ex. PW6/A), seizure memo Ex. PW6/C and arrest memo Ex. PW6/D and has identified his signatures thereon. He has also identified the above Ex. P1 to P5 during his examination in this court, besides identifying the accused.
16. PW11 Inspector Dalip Kumar (SI at that time) is the main investigating officer of this case and he has also deposed in detail, likewise PW6 Ct. Surender Singh and PW10 HC Pradeep Kumar, regarding the investigating done by him at the spot. He is the author of the notice U/S 50 NDPS Act Ex. PW6/F and its reply Ex. PW6/B, seizure memo Ex. PW6/C, statement of HC Pradeep Ex. PW10/A and the rukka Ex. PW11/A endorsed thereon, the arrest and personal search memo of the accused Ex. PW6/D and PW6/E respectively and also the site plan Ex. PW10/B etc. He has also subsequently sent the reports U/S 57 NDPS Act Ex. PW4/A to the area ACP through the SHO concerned and on 30.01.2009 he had also sent the SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 10 sample pullandas of this case to FSL through Ct. Mehmood Khan and had tendered on record the FSL results Ex. PW11/C and PW5/A, which were received by him on 04.05.2009 through Ct. Jagdeep. Likewise PW6 Ct. Surender Singh and PW10 HC Pradeep Kumar he has also identified the accused as well as the above Ex. P1 to P5 during the trial.
17. PW12 Sh. Mehar Chand is the concerned ACP who had seen and endorsed the above information U/S 57 NDPS Act received in his office on 12.01.2009.
18. After the conclusion of the prosecution evidence the entire incriminating evidence was put to the accused and the same was denied by him to be incorrect. He has claimed himself to have been falsely implicated in this case by the police after having been picked up by the police officials at about 2 AM in the night of 10/11.01.2009 when he had come out of his rented accommodation in Village Molarband, Badarpur, New Delhi for urination. However, no defence evidence was led by the accused in this case.
19. It is necessary to mention here that the above Lavlesh Kumar already stands convicted and sentenced by this court for the offence punishable U/S 20 (b)(ii)(C) of the NDPS Act vide judgment dated 13.01.2011 and order on SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 11 sentence dated 14.01.2011 of this court.
20. I have heard the arguments advanced by Sh Wasi Ur Rehman Ld Additional PP for the State and Sh T.K.Mahapatra, Ld Counsel for the accused and have also appreciated the evidence led on record and the other record of the case.
21. The first argument advanced by Ld defence counsel is that the depositions of only police witnesses are not reliable as the same are not supported by the depositions of any public or independent witness because no such witness has been joined by the IO at any stage of the investigation. However, a bare perusal of the depositions made by PW3 Ct. Satish Kumar and PW10 HC Pradeep Kumar reveals that the recovery of the above Ganja was effected from the possession of the accused Upender Singh merely as a chance and it can be stated to be a ' chance recovery ' because the same was not effected on the basis of some prior or secret information or in a planned manner after constitution of a raiding team. The above two police officials have clearly stated that they both, alongwith some other police officials, were present at the spot when they had noticed two persons coming from the side of Lado Sarai bus stop and carrying a bag each on their shoulders. On apprehension of the above two persons on the ground of suspicion and on checking of the contents of the above SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 12 bags, the same were found to be containing Ganja. Hence, there was hardly any time available to these police officials for making any request to any public persons for joining them in apprehension of the accused persons.
22. As far as the non joining of the public witnesses after the apprehension of the accused persons is concerned, it has been specifically deposed by PW10 HC Pradeep Kumar as well as by PW6 Ct. Surender Singh and PW11/IO Inspector Dalip Kumar, who both have reached at the spot on receiving information about the apprehension of the accused and recovery of the contraband substance, that the IO/PW11 had requested 4/5 passersby to join the proceedings, but none had agreed for the same and all had left the spot without disclosing their names and addresses. It is a fact of common knowledge that the public persons are always reluctant to join the police investigations because of the long drawn litigation as well as the harassment etc. which they may have to face in becoming party to witness such proceedings. Even otherwise, no fruitful purpose would have been served in joining the public witnesses at that stage for witnessing the writing work only as the recovery of the contraband substance had already been effected by the police. The depositions made by PW3 as well as PW10 regarding the apprehension of the accused Upender Singh and the recovery of the above Ganja from him cannot be doubted SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 13 simply because they both are police officials as the presumption of honesty is also available to them as the same is available to any other officials and conviction can be based on the testimonies of such witnesses. Reference in this regard can be made to the cases of Parveen Kumar Vs State of Kar. (2003) 12 SCC 199, Karamjeet Vs State 2003 Crl.L.J 2021 SC and Girja Pd. Vs State of MP AIR 2007 (SC) 3106. Hence, in view of the above discussion and the prepositions of law as laid down in the above said cases, this argument of Ld. defence counsel does not hold good.
23. The next argument of Ld. Defence Counsel is that there are some discrepancies in the story of the prosecution with regard to the service of the alleged notice U/S 50 of the NDPS Act as the ink and handwriting of the original notice Ex. PW6/F and the carbon copy thereof Ex. PW6/E appear to be different and these documents appear to be fabricated and the story of the prosecution to be false. No such difference in the handwriting or in the ink of the above two documents is found to be there and apparently both the documents appear to be in the handwriting of one and the same person and as per the depositions of the prosecution witnesses the above documents are in the handwriting of PW11/IO Inspector Dalip Kumar. The slight difference being pointed out in the original notice Ex. PW6/F is not the difference of ink or SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 14 handwriting but it appears as if some oily substance had fallen or touched the paper/notice Ex. PW6/F and it may be while the same was lying in the custody of the police malkhana, where there is generally a mishandling of the case property due to shortage of the space and the work load. Hence, there does not appear to be any discrepancy in the above documents. Even otherwise it is now well settled that Section 50 of the NDPS Act has got no applicability where the recovery of the contraband substance has been effected not from the person of an accused, but from a briefcase, suitcase, bag or thaila etc. being carried by the accused. Reference in this regard can be made to the cases of State of H.P. Vs Pawan Kumar 2005 (4) SCC 350, Madan Lal Vs State of H.P. 2003 Crl.L.J 3868 and Ajmer Singh Vs State of Haryana 2010 (2) SCR 785 (Crl. Appeal No. 436/09). Therefore, any such alleged discrepancy being pointed out by the Ld. Defence Counsel in the above document can safely be ignored otherwise also.
24. It is also argued by Ld defence counsel that FIR number and other particulars of the case are found written on the seizure memo Ex. PW6/C and PW6 Ct. Surender Singh as well as PW10 HC Pradeep Kumar have both stated that the above entire document is in the same position in which it was prepared and signed by them at the spot and this fact clearly shows that the above document was prepared after SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 15 registration of this case. I am afraid that simply because the case particulars are appearing on the above document no such inference can be drawn that this document was prepared after registration of the case. PW6 has nowhere stated so and he has simply stated that the entire seizure memo Ex. PW6/C was written from point A to A by the IO, i.e. PW11 Inspector Dalip Kumar. The depositions made by PW10 HC Pradeep Kumar that the above document is in the same condition in which it was signed by him at the spot and nothing is found to be added therein subsequent to the putting of his signatures cannot be given much weight as the author of the above document, i.e. the IO/PW11 Inspector Dalip Kumar, in his cross examination has clearly stated that the FIR number etc. on the above document were written by him subsequent to the preparation of the said document. Hence, this argument of Ld Defence Counsel also cannot be given much weight.
25. The next argument of Ld Defence Counsel is that the prosecution has failed to establish beyond doubts that the FSL Form was also deposited in the police malkhana, alongwith the pullandas of the case property and samples, or the same was carried with the sample pullandas to be FSL and hence the material link evidence in this case is missing and hence the accused cannot be convicted on the basis of the existing evidence led on record. On SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 16 appreciation of the prosecution evidence it is observed that PW6, PW10 as well as IO/PW11 have all stated in their statements that the FSL Form was filled up by the IO at the spot and it is also stated by them that the same was handed over by the IO/PW11 to PW6, alongwith the rukka and the sealed pullandas, for carrying the same to the PS. PW9/SHO Inspector Pankaj Singh has also stated that the same was handed over to him and was deposited by him in the police malkhana, alongwith the pullandas of the case property and the samples and a copy of the seizure memo. In his cross examination PW9 has also stated that he had even written the FIR number etc. on the above said form and the other documents before the deposit in the malkhana. Even the FSL report Ex. PW11/C, which is per-se admissible in evidence U/S 293 Cr.P.C., it is specifically mentioned that the sample pullandas were received in the FSL alongwith the forwarding letter (FSL Form) and the seals of the pullandas were intact and tallied with the specimen seals as per the above letter/form. Simply because PW2 HC Kuldeep/MHC(M) and PW7 Ct. Mahmood Khan, i.e. the sample carrier, have not stated in their statements that the FSL Form was also deposited with PW2 or that the same was also carried by PW7, alongwith the sample pullandas, or that there is no mention of deposit or carrying of the FSL form in the entry Ex. PW2/A of the register No. 19 and road certificate Ex. PW7/DA, no such inference regarding the tempering of the SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 17 sample pullandas as well as the non deposit of the above form in the malkhana or in the FSL, as argued by Ld. Defence Counsel, can be drawn and the above discrepancy is not found to be material or affecting the credibility of the prosecution story. The judgements in cases Sanjay Kumar Vs State 2003(2) JCC 1056, Mr. Jacob Lawnson Vs The State 1996 JCC 513 and Safiullah Vs State (Delhi Administration) 1993 JCC 33 being relied upon by Ld Defence Counsel have not been found to be relevant as the facts and circumstances of the present case can be differentiated from those of the above cases and there were some other material factors also in the above cases which had resulted in the acquittal of the accused persons in the said cases.
26. It has also been argued by Ld Defence Counsel that there is a delay of about 20 days in sending of the samples because the samples were drawn on the date of recovery itself, i.e. 10.01.2009, and the same were sent to the FSL on 30.01.2009. It has also been argued that the site plan Ex. PW10/B has not been signed by any member of the raiding team as a witness and the proceedings with regard to the sending of the information U/S 57 NDPS Act are also manipulated. However, none of the above arguments of Ld. Defence Counsel is found to be worthy of acceptance on the basis of record, so as to make out a case of acquittal for the accused. The above delay of 20 days in sending of the SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 18 samples cannot be said to be inordinate and keeping in view the workload of the police and the FSLs such a delay is ignorable as there is nothing on record to suggest that the samples were tempered with during the above said period or the same were not found fit for examination. The judgement in case of Ramesh Vs State of Haryana 1998(1) RCR (Crl.) 146 being relied upon by Ld. Defence Counsel on the point of delay cannot be given any weight in view of the contrary judgement of our own High Court in case Ramesh Kumar Rajpur @ Khan Vs The State of NCT of Delhi-MANU/DE/0786/2008. There is also not found to be any legal requirement for getting the site plan signed from a witness and no fabrication or manipulation of the proceedings or the sending of the information U/S 57 of the NDPS Act can also be inferred from the record. In terms of the provisions of the above section such an information is required to be sent by the concerned officer to his immediate superior officer within 48 hours of the arrest of an accused or seizure of a contraband substance under the NDPS Act and as per the evidence led on record the information Ex. PW4/A regarding the arrest and seizure dated 10.01.2009 was forwarded by the SHO concerned on 11.01.2009 and it was also seen and endorsed by the ACP concerned on 12.01.2009. Hence, the provisions of Section 57 NDPS Act, which otherwise also are directory in nature, are found to had been duly complied with.
SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 19
27. PW3 Ct. Satish Kumar and PW10 HC Pradeep Kumar have both made consistent and corroborative depositions regarding the apprehension of the accused Upender Singh, alongwith the above co-accused Lavlesh Kumar, who was tried and convicted separately, with the above bag and the recovery of three packets containing 5 KG, 10 KG and 10 KG of Ganja respectively, i.e. 25 KG of Ganja in total, in brick form. The information given by PW10 at the PS regarding the apprehension of the accused with the above contraband substance had been recorded at the PS vide DD No. 15A, which has been duly proved on record by PW1/DO HC Suresh Kumar as Ex. PW1/B. The departure of PW3 Ct. Satish Kumar and PW10 HC Pradeep Kumar from the PS for patrolling has also been duly corroborated on record by the contents of DD No. 24B Ex. PW1/D. PW11/IO/Inspector Dalip Kumar was deputed for conducting the investigation of this case and even his name is duly reflected in the above DD No. 15A Ex. PW1/B. PW10 HC Pradeep Kumar, PW6 Ct. Surender and the IO/PW11 Inspector Dalip Kumar have all deposed in detail regarding the investigation conducted by the IO/PW11 at the spot, which included the weighing of the contraband substance, the drawing of samples therefrom, the preparation of the pullandas of the samples and the case property and the sealing and seizure thereof. It has been specifically deposed by them that all the pullandas were sealed with the seal of ' DK ' and Form FSL was also filled SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 20 up by the IO/PW11 at the spot and the seizure memo of the case property and the sample pullandas has also been duly proved on record as Ex. PW6/C during the depositions of the above witnesses, as it has been prepared by the IO/PW11 and witnessed by PW10.
28. Further, it has also been specifically deposed by them that the pullandas of the case property and the samples, along with the FSL Form, a copy of seizure memo and the rukka were taken to the PS by PW6 Ct. Surender and it has also come on record during the depositions of the SHO/Inspector Pankaj Singh/PW9 that the same were handed over to him and he after affixing his own seal of ' PS ' thereon, had deposited the same in the police malkhana. It also stands proved on record that the above two sample pullandas were taken from the police malkhana vide RC No. PW7/DA and deposited in FSL Rohini on 30.01.2009 by PW7 Ct. Mehmood Khan and the receipt of their deposit was handed over back to the MHC(M). As already discussed above, the prosecution evidence led on record also rules out any possibility of tampering with the pullandas of the case property and samples at any stage.
29. The above pullandas were examined in FSL and the reports regarding their chemical and biological examination have been brought on record as Ex. PW11/C and PW5/A SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 21 respectively. The report Ex. PW11/C is per-se admissible in evidence under the provisions of Section 293 Cr.P.C. whereas the report Ex. PW5/A has been duly proved on record by the depositions of PW5 Ms. Anita Chhari, the FSL expert. In the report Ex. PW11/C it is specifically mentioned that the above samples had given positive results for cannabinoids including Tetrahydrocannabinol and were confirmed to be of Ganja (cannabis). In report Ex. PW5/A also the same were identified as dried greenish brownish flowery vegetative material with seeds. Since the seeds were accompanied by the flowery portion of the cannabies plant, the same fall within the definition of the term " Ganja " as contained in Section 2(iii)(b) of the NDPS Act.
30. Nothing material could be extracted out by Ld. defence counsel during the cross examination of the above material police witnesses of recovery of the above contraband substance from the possession of the accused and investigation regarding the same, i.e PW3 Ct. Satish Kumar, PW6 Ct. Surender and PW10 HC Pardeep Kumar and also from the IO/PW11 Inspector Dalip Kumar and only some minor contradictions have come in the prosecution story during their such cross examination, which do not matter much and have only resulted from the gap between the incident and recording of their depositions in the court. Though Ld SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 22 defence counsel has also referred to some other judgements, but the same are not found to be relevant in the instant case. No evidence was led by the accused in his defence to substantiate his plea of false implication. There is also not found to be any enmity between the accused and any of the above police officials so as to falsely implicate him in this case nor any such plea has been raised.
31. In view of the above discussion, I, therefore, hold that the prosecution has successfully brought home the guilt of the accused Upender Singh for the offence U/S 20
(b)(ii)(C) of the NDPS Act and the charge for the said offence framed against the accused stands duly proved on record. The accused Upender Singh is accordingly held guilty and convicted for the above offence. Let he be now heard on the quantum of sentence.
Announced in the open
court on 06.07.2011 (M.K.NAGPAL)
Additional Sessions Judge
South & South East District
Saket Court Complex
New Delhi
SC No. 40A/09 State Vs Upender Singh
FIR NO. 14/09
PS: Saket
23
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST SAKET COURT COMPLEX, NEW DELHI State Versus Upender Singh S/o Sh Ramayana Singh R/o Village Balua Tola, PS Jadupur, District Gopalganj, Bihar.
SC No. 40A/09 FIR No. 14/09 U/S: 20 NDPS Act PS : Saket ORDER ON SENTENCE
Present: Sh Wasi Ur Rehman Additional PP for the State.
Convict Upender Singh in JC with Sh T.K.Mahapatra Advocate.
After having convicted the accused for the offence U/S 20 (b)(ii)(C) of the NDPS Act vide my judgment dated 06.07.2011 arguments have been heard today as advanced by Sh Wasi Ur Rehman, Ld Additional PP for the State and Sh T.K. Mahapatra Ld counsel for the convict.
2. It has been submitted on behalf of the State that the maximum term of imprisonment be imposed upon the convict and he does not deserve any leniency from this court as he has been found guilty of possessing a " c ommercial SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 24 quantity" of Ganja in violation of the provisions of the NDPS Act.
3. On the other hand it has been submitted on behalf of the convict that besides this case he is not involved in any other criminal case of any nature. It is also stated that the convict is a young man of about 25 years of age and he is still unmarried and he is also stated to be the sole bread earner of his family consisting of his old mother an two unmarried minor sisters as his father is stated to be missing since the year 2004. Hence, a request has been made for taking a lenient view in awarding sentence to the convict.
4. I have thoughtfully considered the above submissions being advanced on the point of sentence. The convict has been found guilty of carrying and possessing a commercial quantity of Ganja which carries a minimum sentence of Rigorous Imprisonment for a period of not less than 10 years and extending upto 20 years and also a fine of not less than Rs. 1,00,000/- and extending upto Rs. 2,00,000/-. Therefore, keeping in view the totality of the facts and circumstances of the case and the age, liability and family circumstances etc. of the convict and while taking a lenient view, I sentence the convict Upender Singh to undergo Rigorous Imprisonment for a period of ten years SC No. 40A/09 State Vs Upender Singh FIR NO. 14/09 PS: Saket 25 and to pay a fine of Rs 1,00,000/-. In case of non payment of fine he shall further undergo Rigorous Imprisonment for a period of three months. The period of custody already undergone by the convict is allowed to be set off in terms of the provisions of Section 428 Cr.P.C. Fine has not been paid by the convict. Let him to undergo the above sentence as per law.
5. A copy of the judgment and the order on sentence be supplied to the convict free of cost. File be consigned to the record room.
Announced in the open
court on 11.07.2011 (M.K.NAGPAL)
ASJ/Spl. Judge NDPS
South & South East District
Saket Court Complex
New Delhi
SC No. 40A/09 State Vs Upender Singh
FIR NO. 14/09
PS: Saket