Delhi District Court
Sc No.12/11 State vs . Sanjeev Kumar & Anr. on 13 May, 2016
SC No.12/11 State Vs. Sanjeev Kumar & Anr.
IN THE COURT OF SH. DEEPAK GARG: SPECIAL JUDGE NDPS:
PATIALA HOUSE COURTS: NEW DELHI
SC No. 12/11
ID No. 02403R0036502011
FIR No. 45/10
PS Special Cell
u/s 21 NDPS Act
State Vs. 1. Sanjeev Kumar
S/o Late Sh. Sudershan Kumar
R/o 26, New Ranjeet Pura,
PS Chhehrata, Amritsar, Punjab
2. Dinebari Debari @ Daniel
S/o Yormade
R/o H.No. A57, Ganesh Nagar,
New Delhi
Date of Institution : 27.04.2011
Judgment reserved on : 05.05.2016
Date of pronouncement : 13.05.2016
JUDGMENT
1. The chargesheet in the present case has been filed against the aforementioned accused persons u/s 21 of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as 'NDPS Act').
2. Briefly stated the allegations against the accused persons as made in the chargesheet and as can be culled out from the documents filed alongwith it are FIR No. 45/10 PS Special Cell Page No. 1 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
as follows:
(a) On 03.11.2010 at about 02.50 PM a secret informer came to the office of Special Cell/SR and disclosed to Inspector Satender Sangwan that one Sanjeev Kumar of Amritsar (Punjab) will come to Delhi to deliver drugs to some Nigerian near Akshardham Metro Station at about 05.00 PM.
(b) The said information was recorded vide DD No. 11 and was also discussed with the ACP/SR/OC who directed to take immediate legal action.
(c) A raiding team comprising of ASI Mahipal Singh, HC Balraj, HC Anil Tyagi, HC Vijay Pratap, HC Rajender Singh, Ct. Rajesh and Ct. Satish then proceeded for the spot alongwith IO kit and the informer and reached Akshardham Metro Station spot at about 04.15. PM. The members of the raiding team were positioned near and about the said metro station and at about 04.50 PM, one person aged about 2526 years with a black colour bag on his right shoulder came on foot from Pandav Nagar side and was identified by the secret informer as accused Sanjeev Kumar. The said persons waited for sometime on the side road near over bridge Railway line, Ganesh Nagar and then started moving towards the railway line and at this stage, he was apprehended by the raiding team.
(d) IO Inspector Satender Sangwan introduced himself and the members of the raiding team to the accused and on enquiry he revealed his name as Sanjeev Kumar. He was then informed about the secret information received by the raiding team and he was also apprised about his right to be searched before a Gazetted Officer or a Magistrate. Notice u/s 50 NDPS Act was also issued to FIR No. 45/10 PS Special Cell Page No. 2 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
the accused and he was explained its contents. The accused refused to call a Gazetted Officer or a Magistrate and informed the IO that his search may be taken by the police officials themselves. Pursuant to the said refusal of the accused, IO Inspector Satinder Sangwan alongwith HC Balraj then conducted the search of the bag of that the accused was holding. It was found containing some clothes and on further checking, a hidden cavity on the bottom was found and from the said cavity, four transparent polythene packets packed with brown colour tape containing cream colour powder/granules were recovered which on testing with Field Testing Kit gave positive result for heroin. The said packets were given marks A, B, C and D. The powder in the said polythene packets on being weighed separately was found to be 1.012 Kg, 1.011 Kg, 1.012 Kg and 1.014 Kg. Samples of 20 grams each were taken out from all the packets and were converted into cloth pullandas which were then given Marks S1, S2, S3 and S4. All the packets were converted into cloth pullanda and sealed with the seal of SS. The FSL Form was filled and the impression of the same seal was then affixed on the Form FSL and thereafter the seal was handed over to HC Balraj Singh.
(e) Thereafter IO prepared the rukka and handed over the same to HC Anil Tyagi alongwith form FSL and copy of seizure memo with directions to register the case and deposit the case property with SHO. Further investigation was handed over to SI Anand Swarup who prepared the site plan at the instance of Inspector Satendra Sangwan, arrested the accused and recorded his statement in which he disclosed the name of one Daniel who lived somewhere in Ganesh FIR No. 45/10 PS Special Cell Page No. 3 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
Nagar and to whom he delivers the heroin.
(f) During the course of further investigation on 06.11.2010, one secret informer met SI Anand Swarup and informed him that the accused named Daniel, who is wanted in this case will come around 04.30 PM to deliver heroin to his Nigerian counterpart namely Joe at Vikas Marg near Shakarpur Chungi.
(g) The said information was discussed with senior officers who directed to take immediate legal action. Accordingly a raiding team alongwith accused Sanjeev Kumar then proceeded for the spot and on reaching there, they took position at the road going towards Noida More. At about 04.20 PM, one person of African origin, aged about 4045 years came there and started waiting for somebody at the turn near Vikas Marg. The said person was identified as Daniel by accused Sanjeev Kumar. After waiting for sometime, the said person then started moving towards Noida More and at this stage, he was apprehended by the raiding team.
(h) On enquiry, the said person revealed his name as Dinebari Debari @ Daniel. IO SI Anand Swarup introduced himself and the members of the raiding team to the said accused. He was then informed about the secret information received by the raiding team and he was also apprised about his right to be searched before a Gazetted Officer or a Magistrate. Notice u/s 50 NDPS Act was also issued to the accused and he was explained its contents. The accused refused to call a Gazetted Officer or a Magistrate and informed the IO that his search may be taken by the police officials themselves. Pursuant to the said refusal of the accused, IO SI Anand Swarup alongwith HC Balraj then FIR No. 45/10 PS Special Cell Page No. 4 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
conducted his personal search and one transparent polythene packet was found in his underwear under the belt which on testing with Field Testing Kit gave positive result for heroin. The heroin in the said packet on being weighed was found to be 1.011 Kg. Sample of 20 grams was taken out from the packet and was converted into cloth pullanda which were then given Mark S5. The packet with remaining heroin was also converted into cloth pullanda and was given mark E. Both the parcels were sealed with the seal of AS. The FSL Form was filled and the impression of the same seal was then affixed on the Form FSL and thereafter the seal was handed over to HC Balraj Singh.
(i) Thereafter the accused Daniel was arrested, site plan was prepared and the team returned back to PS Special Cell where the accused was produced before the SHO and the case property alongwith copy of seizure memo was deposited with the malkhana and statements of witnesses were recorded.
(j) Reports u/s 57 NDPS Act pertaining to the seizure and arrest of accused persons were submitted to the senior officials. The sample pullandas were sent to FSL, Rohini.
(k) After receiving the reports from FSL with respect to the contraband, the present chargesheet was filed.
3. On the basis of material placed on record, charges were framed against accused Daniel and Sanjeev Kumar by the Ld. Predecessor of this court vide order dated 12.05.2011 for the offences punishable u/s 21 (c) of the NDPS Act. Both the accused persons pleaded not guilty to the said charges and claimed trial.
4. The prosecution in order to prove its case has examined 12 witnesses in all. FIR No. 45/10 PS Special Cell Page No. 5 of 30
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5. PW1 HC Balraj Singh, PW7 HC Anil Tyagi and PW11 Insp. Satender Sangwan are members of the raiding team. They have deposed on similar lines and have reiterated more or less the assertions made in the charge sheet. PW11 Insp. Satender Sangwan is the main Investigating and seizing Officer. As per his deposition the secret information received by him was reduced into writing vide DD no. 11 and the departure of the raiding team from the PS was recorded vide DD no. 12. The said DDs have been exhibited as Ex.PW11/A and Ex.PW11/B respectively. The notice deposed to have been issued to the accused Sanjeev u/s 50 of the NDPS Act has been exhibited as Ex.PW1/A and the refusal asserted to have been given by the accused has been exhibited as Ex.PW1/B. The seizure memo prepared with respect to the recovery of heroin has been exhibited as Ex.PW1/B. The tehrir prepared at the spot has been exhibited as Ex.PW7/DA.
6. PW2 HC Uma Shankar has deposed that he is posted as SO ACP, New Friends Colony. As per the record produced by this witness, on 4/11/2010 and 7/11/2010 reports u/s 57 NDPS Act regarding seizure and arrest of accused, prepared by SI Anand Swarup were received in the office of ACP and that the said reports were put before ACP. The reports and record produced by this witness have been duly exhibited during his testimony as Ex.PW2/A to Ex.PW2/D.
7. PW3 Ct. Rajesh Kumar has interalia deposed that on 07/10/2010 on the directions of IO, he had collected five pullandas along with FSL form from FIR No. 45/10 PS Special Cell Page No. 6 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
MHC(M) vide RC no. 162/21 and had got the same deposited with FSL, Rohini, obtained receipt and handed over the same to MHC(M).
8. PW4 ASI Mathias Baxla has deposed that he was posted as MHC(M) at PS Special Cell on 3/11/2010 and this witness has proved the entries in the malkhana register maintained by him with respect to case property, pullandas, etc deposited with him by the investigating officials.
9. PW5 Duty officer ASI Bhagwat Prasad has interalia deposed that he was the duty officer on 3/11/2010 and that on this date he had received the rukka of the present case through HC Anil Tyagi and had registered the FIR, Ex.PW5/A and made endorsement on rukka ExPW5/B.
10.PW6 Sh. Israr Babu, Alternate Nodal Officer from Vodafone Mobile Service Ltd. has produced before the court, the call detail records of the mobile numbers 9888756858 and 9953241979 for the period 01/09/2010 to 03/11/2010 and the same have been exhibited as Ex.PW6/C1 and Ex.PW6/F1. The said witness has also produced the customer application forms and copy of identity proof with respect to the said numbers Ex.PW6/A and Ex.PW6/D.
11.PW8 Inspector R.S. Sehrawat has inter alia deposed that on 3/11/2010, he was posted as SHO, PS Special Cell and on that day, HC Anil Tyagi produced before him, eight pullandas, one FSL Form and carbon copy of seizure memo. As per the deposition of this witness, he put the FIR number, his initials and his seal 'RSS' on all the pullandas and the FSL form and then got the said property deposited in the Malkhana by ASI M. Baxla MHC(M). He has further deposed FIR No. 45/10 PS Special Cell Page No. 7 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
that on 6/11/2010, ASI Anand Swarup produced before him, two pullandas, one FSL Form and carbon copy of seizure memo. As per the deposition of this witness, he put the FIR number, his initials and his seal 'RSS' on all the pullandas and the FSL form and then got the said property deposited in the Malkhana by ASI M. Baxla MHC(M).
12.PW9 Sh. Amar Pal Singh, Assistant Director, FSL, Rohini has proved the report prepared by him with respect to the analysis conducted by him of the sample sent to FSL. The said report has been exhibited as Ex. PW9/A and as per the said report, the sample mark S1, S2, S3, S4 and S5 were found to contain diacetylmorphine and the percentage of diacetylmorphine were found therein to be 42.59%, 51.64%, 46.47%, 45.21% and 44.57% respectively.
13.PW10 SI Anand Swarup is the second investigating officer of the present case who has inter alia deposed that he had reached the spot on 3/11/2010 and on reaching the spot he had met Insp. Satender Sangwan who had produced before him the accused and documents prepared by him. As per this witness he had thereafter prepared the site plan Ex.PW1/DA and had then interrogated the accused and had thereafter recorded the disclosure statement of accused Sanjeev, Ex.PW1/C and had then arrested him vide arrest memo, Ex.PW1/D. The notice deposed to have been issued to the accused Daniel u/s 50 of the NDPS Act has been exhibited as Ex.PW1/G and the refusal asserted to have been given by the accused Daniel has been exhibited as Ex.PW1/H. The seizure memo prepared with respect to the recovery of 1.011 kg heroin has been FIR No. 45/10 PS Special Cell Page No. 8 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
exhibited as Ex.PW1/H. As per this witness he had thereafter prepared the site plan Ex.PW10/A and he had then interrogated the accused Daniel and had thereafter recorded the disclosure statement of accused Daniel, Ex.PW1/J and had then arrested him vide arrest memo, Ex.PW1/K. This witness has also inter alia proved the reports prepared by him u/s 57 NDPS Act as Ex.PW2/A and Ex.PW2/C.
14.After the conclusion of prosecution evidence, statement of both the accused was recorded u/s 313 Cr.PC in which they alleged that nothing was recovered from them and they have been falsely implicated in this case.
15.Accused Sanjeev Kumar has taken a defence that on 03.11.2010 he had come to Delhi to offer prayer at all gurudwaras in Delhi since he was acquitted in a murder case in Punjab in February, 2010 and on that day at about 05.30 PM he was forcibly picked up by 810 persons in civil clothes from ISBT, Delhi who were the police officials and he was falsely implicated in this case. Regarding the coaccused he stated that he did not know Daniel before his arrest in this case and he saw him for the first time in the office in which he was detained. He further stated that no contraband was recovered either from him or from co accused Daniel, in his presence.
16.Accused Dinabari Debari @ Daniel has taken a defence that on the fateful day, 67 persons came to his tenanted premises at A57, Ganesh Nagar, New Delhi at about 12.30 PM in the afternoon and they told that they were police officials and were looking for some Nigerians and at that time son of his landlord Bhagwan Sharma was also present. The said police officials told him to go FIR No. 45/10 PS Special Cell Page No. 9 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
outside and thereafter they searched his premises completely but did not find anything. Then they asked him to accompany them and he was falsely implicated in this case. Regarding the coaccused Sanjeev Kumar, he stated that he did not know him before his arrest in this case and he saw him for the first time in the office in which he was detained. He further stated that no contraband was recovered from him.
17.Both the accused have not led any evidence in defence.
18.It is relevant here to state that the matter was at the stage of final arguments, Ld. APP for the State moved an application u/s 311 Cr.PC to summon and examine Sh. L.N. Rao, the then ACP, Special Cell, Delhi and vide order dated 13.08.2015 the said application was allowed and Sh. L.N. Rao, then then ACP was examined in court as PW12. He deposed that on 03.11.2010 while he was present in his office, Inspector Satender Sangwan informed him about the specific information with respect to Sanjeev and he was shown copy of DD No. 11, Ex.PW11/A which was recorded in writing by Inspector Satender Sangwan. He directed him to constitute a raiding party and take appropriate legal action. Subsequently he was informed on telephone that one person namely Sanjeev had been apprehended alongwith heroin and then he deputed SI Anand Swarup for further investigation of the case. He further deposed that he received report u/s 57 NDPS Act submitted by SI Anand Swarup on 04.11.2010 and on 07.11.2010.
19.I have heard Sh. Y.K. Saxena, Ld. Counsel for accused Sanjeev Kumar, Sh. K.J.S. Mann, Ld. Counsel for accused Dinabari, Debari and Sh. R.K. Bhati, Ld. FIR No. 45/10 PS Special Cell Page No. 10 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
APP for the State and I have carefully perused the record.
20.At the time of final arguments, there are certain points which have been commonly raised by both the Ld. Counsels for the defence and there are certain points which have been individually relied upon by them.
21.It is argued by both the Ld. Counsels for the defence that there is non compliance of mandatory provision of section 42 NDPS Act in the present case and hence the case of the prosecution is liable to fall on this ground alone.
(i) It is argued by both the Ld. Counsels that there is non compliance of section 42(1) of NDPS Act because the fact that secret information was reduced into writing in the form of DD No.11 Ex.PW11/A is itself highly doubtful and the same has been fabricated and manipulated by the investigating agency. It is stated that as per the case of the prosecution, secret information had been received on 03.11.2010 that Sanjeev Kumar of Amritsar (Punjab) who was to come in the morning to deliver the consignment would come near Akshardham metro station at about 05.00 PM on that day but this fact that 'he was to come in the morning' to deliver the consignment was not mentioned in the rukka Ex.PW7/DA, in the testimony of PW11 Inspector Satender Sangwan or PW12 Sh. L.N. Rao, the then ACP and hence the writing of DD No.11 itself makes the case of the prosecution highly doubtful.
(ii) It is further argued by both the Ld. Counsels for the defence that there is non compliance of section 42(2) of the NDPS Act. As per section 42(1) of the NDPS Act any information received by an officer empowered has to be reduced into writing and as per the section 42(2) NDPS Act, a copy thereof has FIR No. 45/10 PS Special Cell Page No. 11 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
to be sent to the immediate superior officer within 72 hours which, it is alleged has not been done in the present case. He has relied upon an authority Kishan Chand Vs. State of Haryana AIR 2013 SC 357 and Darshan Singh Vs. State of Haryana 2016(1) JCC (Narcotics) 71 in support of his contentions to bring home the point that the prosecution has to make strict compliance of section 42(2) of the NDPS Act and the fact of substantial compliance of the said provision would not be sufficient and the same has been deprecated by Hon'ble Supreme Court in the said case.
(iii) It is argued by Ld. Counsel for accused Dinabari that admittedly in case of the apprehension of accused Dinabari, the secret information was not reduced into writing and it has been so admitted by IO SI Anand Swarup and hence the accused is entitled to be acquitted on this ground alone.
22.It is further argued by both the Ld. Counsels for the defence that there is non compliance of mandatory provisions of section 50 NDPS Act and hence the accused are entitled to be acquitted.
(i) It is argued by Ld. Counsel for accused Sanjeev Kumar that it has been held in the authority of State of Rajasthan Vs. Parmanand & Anr. 2014(2) JCC (Narcotics) 16 and State Vs. Baldev Singh JT 1999 Vol 5 SC 595 that if the search of a suspect is conducted on prior information then the suspect has to be informed in clear words about existence of his legal rights to get his search conducted in the presence of gazetted officer or a magistrate but in the present case, notice u/s 50 NDPS Act Ex.PW1/A to accused Sanjeev Kumar clearly shows that the communication of legal rights was not clear and it was vague and FIR No. 45/10 PS Special Cell Page No. 12 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
there was confusion. Further gazetted officer or magistrate were not to be called at the spot, if the accused wanted their presence but the accused had to be taken there to the said authorities to fulfill the requirement of section 50 NDPS Act. It is further argued that in the reply of the accused, it was nowhere mentioned that the legal rights were explained to him.
(ii) It is further argued that at the time of recovery of contraband, the bag of the accused was also found containing some used clothes but the said bag when produced in the court on 29.07.2011 during the testimony of HC Balraj Singh did not contain any clothes and further during the examination of PW10 SI Anand Swarup on 24.08.2012 the clothes were there in the bag and it makes the case of the prosecution highly doubtful. It is further argued that the said bag was required to be sealed by the IO but it was not done and it was produced in open condition before the court which also raises suspicion.
(iii) It is argued by Ld. Counsel for accused Dinabari Debari that since the contraband was allegedly recovered from the body of the accused i.e. under his clothes, it was necessary for the investigating agency to comply with section 50 NDPS Act and from the notice Ex.PW1/C to accused Dinabari it is clear that legal rights that he had a legal right to be searched in the presence of magistrate or gazetted officer was not properly explained to him.
23.It is further argued by both the Ld. Counsels for the defence that there is non compliance of section 52, 55 of the NDPS Act and preparation of FSL form at the spot is doubtful.
FIR No. 45/10 PS Special Cell Page No. 13 of 30
SC No.12/11 State Vs. Sanjeev Kumar & Anr. (i) It is argued that as per section 52(3) of the NDPS Act every person
arrested has to be forwarded without unnecessary delay to the officer incharge of the nearest police station or empowered officer u/s 53 of NDPS Act but in the present case both the accused persons were not so produced before the said officers and hence there was non compliance of the said provision.
(ii) It is argued that there is no documentary record to prove that the FSL form, samples and case property were countersealed by the SHO and they were deposited in the malkhana by him after affixing his seals. It is stated that PW4 ASI M. Baxla who was working as malkhana incharge has admitted in his crossexamination that in entry Ex.PW4/A and PW4/C there is no reference of the seal of RSS. It is further argued that in the said entries there is no mention that the FSL form was deposited in malkhana.
24.It is further argued by both the Ld. Counsels that there is delay in sending the sample to the FSL. As per the case of prosecution, seizures were affected on 03.11.2010 and 06.11.2010 but the samples were sent to FSL on 07.12.2010 i.e. after about a month of the second seizure and the prosecution has not explained the delay in sending the samples.
25.It is argued by Ld. Counsel for accused Sanjeev Kumar that there is non compliance of section 57 NDPS Act because the search and seizure proceedings in respect of Sanjeev Kumar was conducted by PW11 Inspector Satender Sangwan but he did not furnish any report u/s 57 NDPS Act but the report in this regard was subsequently furnished by second IO PW10 SI Anand Swarup and hence there is non compliance of the said provision which makes the case FIR No. 45/10 PS Special Cell Page No. 14 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
of the prosecution doubtful.
26.It is further argued by both the Ld. Counsels that no public witnesses were joined despite the fact that the spot where both the accused persons were arrested was visited by many people and there is nothing on record to suggest that sincere efforts were made by the investigating agency to join some independent public persons as witnesses to the recovery and hence the case of the prosecution fails to raise trust. Reliance has been placed on Chand Khan Vs. State 2000 Crl. L. J. 2645, Rithesh Chakravarty Vs. State of MP 2006(3) JCC Narcotics 150 and Anoop Joshi Vs. State 1999(2) CC cases 314.
27.It is further argued by Ld. Counsel for accused Dinabari Debari that guidelines 1/88 as laid down by NCB while search and seizure proceeding in such cases has not been followed in the present case by the police. Reliance is made on Union of India Vs. Bal Mukund 2009 Crl. L.J. 2407 wherein it has been held that these guidelines are not mere formalities but the investigating agency has to follow them properly and if not followed, the accused must be given the benefit of the same.
28.Both the Ld. Counsel for the defence have relied upon certain more authorities which are as under:
● Jayantilal Modi and Ors. Vs. State of Maharashtra 2002(1) Crimes 374 ● NCB Vs. Kulwant Singh 2013(3) JCC Narcotics 81 ● Hannan Vs. NCT of Delhi 2013(3) JCC (Narcotics) 94 ● Prithvipal Singh Vs. State 2000 III AD DELHI 181 ● Karnail Singh Vs. State of Haryana 2009 (8) SCC 539. FIR No. 45/10 PS Special Cell Page No. 15 of 30
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29.Ld. APP for the State has submitted that the depositions of the prosecution witnesses have more or less remained unrebutted with respect to the search and seizure proceedings. It is further submitted that there is complete compliance of the mandatory provisions of section 42 and section 50 NDPS Act and also other directory provisions and hence his contention therefore is that the prosecution has been able to prove its case beyond reasonable doubt.
30.As far as the recovery of contraband from the accused persons is concerned, it is relevant here to state that there are in total two recoveries. The first recovery is dated 03.11.2010 consisting of 4.049 Kg of heroin from accused Sanjeev Kumar near Akshardham metro station, Delhi. The second recovery is dated 06.11.2010 consisting of 1.011 Kg of heroin from accused Dinabari Debari @ Daniel at the turn near Vikas Marg, Delhi. The members of the raiding team i.e. PW1 HC Balraj Singh, PW7 HC Anil Tyagi and PW11 Inspector Satender Sangwan (in respect of recovery from accused Sanjeev Kumar) and PW1 HC Balraj Singh and PW10 SI Anand Swarup (in respect of recovery from accused Dinabari Debari) have described the search and seizure proceedings in detail.
The case property and the samples were sealed at the spot on both the occasions and were taken into possession vide recovery memos Ex.PW1/B and Ex.PW1/H respectively.
31.The fact that after seizure on both the said occasions, the case property was kept in safe custody has been proved by PW8 Inspector R.S. Sehrawat who was posted as SHO PS Special Cell at the relevant time. He has proved that he put his seal of RSS on the pullandas and the FSL form when they were produced FIR No. 45/10 PS Special Cell Page No. 16 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
before him and he got the same deposited with malkhana alongwith carbon copy of seizure memo on both the said occasions. His statement is corroborated by PW4 ASI M. Baxla who was working as malkhana incharge at the relevant time and he has also proved the relevant entries in the malkhana register.
32.PW10 SI Anand Swarup had furnished report u/s 57 NDPS Act with respect to both the said recoveries and the same has been proved as Ex.PW12/A and Ex.PW12/B respectively. This is also corroborated by the testimony of PW12 Sh. L.N. Rao, Rtd. DCP, the then ACP Special Cell.
33.The deposition of PW3 Ct. Rajesh Kumar proves that the sample drawn from the recovered substances in proper custody were deposited with FSL, Rohini, Delhi for examination and he obtained receipt of the same and handed over the same to MHCM. Photocopy of Road Certificate No. 162/21/2010 in register no. 21 has been proved as Ex.PW3/A.
34.PW9 Sh. Amar Pal Singh, Assistant Director, FSL Rohini has proved the report prepared by him with respect to the analysis conducted by him of the samples with respect to both the recoveries and the report has been proved as Ex.PW9/A and he has proved that the said samples contained diacetylmorphine.
35.The testimony of the prosecution witnesses is trustworthy and believable and nothing has emerged in their crossexamination which cast doubt on the veracity of their statement or to impeach their creditworthiness.
36.Now I must deal with the contentions of Ld. Counsels for the defence.
37.Both the Ld. Counsels for the defence have firstly argued about the non compliance of section 42 NDPS Act in the present case. In my view this FIR No. 45/10 PS Special Cell Page No. 17 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
contention has no merit. The distinction between the scope of section 42 and 43 of the NDPS Act has been considered by higher courts in a number of cases.
38.In Directorate of Revenue and Anr. Vs. Mohd. Nisar Holia (2008) 2SCC 370, Hon'ble Supreme Court has held as under:
14. Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under sub section (1) of Section 42, need not be complied with, only because the place whereat search is to be made is a public place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with. An interpretation which strikes a balance between the enforcement of law and protection of the valuable human right of an accused must be resorted to.
39.In State of Haryana vs. Jarnail Singh (2004) 5SCC 188. The same question regarding section 42 and 43 of NDPS Act came up before the Hon'ble Supreme Court and it was held by the Hon'ble Court as under:
9. Section 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and sunrise.
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40.Recently Hon'ble Supreme Court has also commented on this distinction in Mohan Lal Vs. State of Rajasthan (2015) 6SCC 222. Hon'ble Supreme Court observed:
32. In the present case, the High Court has noted that the information was given to the competent authority. That apart, the High Court has further opined that in the case at hand Section 43 applies. Section 43 of the NDPS Act contemplates seizure made in the public place. There is a distinction between section 42 and section 43 of the NDPS Act. If a search is made in a a public place, the officer taking the search is not required to comply with Sub Section (1) and (2) of Section 42 of the NDPS Act. As has been stated earlier, the seizure has taken place beneath a bridge of public road accessible to public. The officer, SubInspector is an empowered officer under Section 42 of the Act. As the place is a public place and Section 43 comes into play, the question of non compliance of Section 42(2) does not arise. The aforesaid view gets support from the decisions in Directorate of Revenue vs. Mohammed Nisar Holia, (2008) 2SCC 370 and State NCT of Delhi vs. Malvinder Singh (2007) 11 SCC 314.
41.Same view about Section 42 and 43 NDPS Act has also been held by Hon'ble High Court of Delhi in the connected cases of Chand Singh Vs. NCB Crl.
Appeal 1370/2010, Jasbir Singh vs. NCB Crl. Appeal 349/2011 and Narender Singh Jakhar vs. NCB Crl. Appeal 546/2011 vide judgment delivered on 30.11.2015. Hence it is clear that if a search is made in a public place within the meaning of section 43 NDPS Act, the officer taking the search is not required to comply with subsection (1) and (2) of section 42 of the NDPS Act. FIR No. 45/10 PS Special Cell Page No. 19 of 30
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42.In the present case, accused Sanjeev Kumar was apprehended on 03.11.2010 near overbride railway line, Ganesh Nagar, near Akshardham Metro Station, Delhi and coaccused Dinabari Debari was apprehended on 06.11.2010 at Vikas Marg, near Noida Mor, Delhi which are public places and hence in my view in the case at hand section 43 applies and in view of the same section 42(1) and (2) of NDPS Act has no application and hence the investigating agency was not required to reduce into writing the secret information u/s 42(1) and to send it to superior official u/s 42(2) of the Act.
43.Otherwise also, for the sake of argument, even if it is assumed that section 42 was applicable in the circumstances of the case, in my view, there was complete compliance of the said provision. As discussed above, it has been proved that PW11 Inspector Satender Sangwan had reduced into writing the secret information in the form of DD No.11 which is Ex.PW11/A and the same was produced before Sh. L.N. Rao, the then ACP who has also corroborated the same. Although there is no documentary evidence to show that the copy of DD No.11 was sent to the office of ACP but in view of the testimony of Sh. L.N. Rao, ACP, the factum of the secret information having brought to his notice is proved. There is no reason why such a senior officer would lie before the court in this regard. The public servants have to be presumed to have acted honestly. Similarly there is complete compliance of section 42(2) of the NDPS Act also. There is no merit in the contention of Ld. Defence counsels that section 42(2) of the NDPS Act required Inspector Satender Sangwan to send a copy thereof to the ACP and not simply put up the said information before him. The FIR No. 45/10 PS Special Cell Page No. 20 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
requirement of sending the copy to the superior officer u/s 42(2) NDPS Act is to ensure that the information is brought to the notice of immediate superior and it has been so done in the present case. Hence it is clear that there is complete compliance of section 42(1) and (2) of the NDPS Act.
44.The next contention of Ld. Defence counsels is regarding non compliance of section 50 NDPS Act. In my view, this contention is also meritless. As far as accused Sanjeev Kumar is concerned, the recovery of contraband was from the bag carried by him at the spot and hence in my view, since the recovery was not from his person, section 50 NDPS Act is not applicable. A bare reading of section 50 shows that it only applies in case of personal search of a person and it does not extend to search of a vehicle or a container or a bag or premises. It has been so held in Kalema Tumba Vs. State of Maharashtra & Anr. JT 1999 (8)SC 293, State of Punjab Vs. Baldev Singh 1999(6) SCC 172, Gurbaksh Singh Vs. State of Haryana 2001(3) SCC 28, State of Haryana Vs. Mai Ram (2008) 8SCC 292 and by our Hon'ble High Court of Delhi in connected cases of Chand Singh Vs. NCB Crl. Appeal 1370/2010, Jasbir Singh vs. NCB Crl. Appeal 349/2011 and Narender Singh Jakhar vs. NCB Crl. Appeal 546/2011 vide judgment delivered on 30.11.2015.
45.Even otherwise, in my view, there is complete compliance of section 50 NDPS Act in the present case. It is settled law that the court has not only to see the documentary evidence but also the oral evidence of the witnesses to come to the conclusion whether there is compliance or not of section 50 NDPS Act. In the present case notice u/s 50 NDPS Act Ex.PW1/A given to accused Sanjeev FIR No. 45/10 PS Special Cell Page No. 21 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
Kumar and notice Ex.PW1/C given to accused Dinabari Debari clearly mentions that they were explained of their legal rights that it was their legal right to be searched in the presence of a Gazetted Officer or a Magistrate and that they can take the search of the police party, before their search is conducted. PW10 SI Anand Swarup and PW11 Inspector Satender Sangwan have also testified in court that the accused was explained of his legal rights that he can get himself searched in the presence of any Gazetted Officer or a Magistrate and also that he can take the search of the members of raiding party before his search is conducted but the accused refused to get himself searched in the presence of any Gazetted Officer or Magistrate and they gave their refusal in writing. There is nothing in their crossexamination to discredit them in this regard. There is no merit in the contention that in the said notices Ex.PW1/A and PW1/C the communication of legal rights to the accused is not clear or there is any confusion. It is immaterial if the Gazetted Officer or a Magistrate was to be called at the spot or the accused was to be taken there, if he had availed the said offer. It is also not material that in the reply the accused have not mentioned that the legal rights were explained to them. In my view, prosecution has been able to prove that there was complete compliance of section 50 NDPS Act with regard to both the accused persons.
46.There is merit in the contention of Ld. Defence Counsels that the bag of accused Sanjeev Kumar from which the alleged recovery of the contraband was made by the raiding party should have been sealed by the police. However the said bag was not sealed and it was produced in open condition before the court FIR No. 45/10 PS Special Cell Page No. 22 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
at the time of evidence. As per the case of the prosecution, the said bag also contained some clothes of the accused but when the bag was produced on 29.07.2011 the bag did not contain the clothes but when the bag was again produced before the court on 24.08.2012, clothes were in the bag. This, in my view, is not sufficient to see the entire case of the prosecution with doubt. It is the contraband which is material which was recovered from the accused and not the clothes. Since the bag is open, non production of the clothes contained therein cannot be said to be suspicious activity of the prosecution/police. Hence this contention also has no merit.
47.The next contention of both the Ld. Defence counsels regarding non compliance of section 52, 55 of the NDPS Act has also no merit. Prosecution has been able to prove that accused Sanjeev Kumar after his arrest on 03.11.2010 and accused Dinabari Debari after his arrest on 06.11.2010 were produced before Inspector R.S. Sehrawat, SHO PS Special Cell who has been examined as PW8 who had put the FIR number, his initials and his seal of RSS on all the pullandas and the FSL form and then got the said property deposited in the malkhana through ASI M. Baxla, MHCM and the relevant entries no. 1645 and 1647 of the malkhana register no.19 have been proved as Ex.PW4/A and PW4/C respectively. Although it is correct that the said entries do no reflect that the pullandas were bearing the seal of RSS also at the time of their deposition in the malkhana but that in itself would not be sufficient to doubt the prosecution case. MHCM ASI M. Baxla (PW4) when confronted with the said situation, had admitted in the crossexamination that he had reproduced the FIR No. 45/10 PS Special Cell Page No. 23 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
seizure memo in the said register. Here it is important to consider the testimony of PW8 Inspector R.S. Sehrawat who had put the seal of RSS on the said pullandas while depositing the same in the malkhana and the testimony of PW9 Sh. Amar Pal Singh, Assistant Director (Chemistry) FSL, Delhi who had received the said parcels for chemical examination on 07.12.2010 and the sample parcels received by him bore the seal of RSS also besides other seals. Hence it is clear that the pullandas in question were sealed by the SHO with the seal of RSS at the time of their deposition in the malkhana and non recording of the said fact by the MHCM was negligent and careless act on his part which in itself is not sufficient to throw the case of the prosecution.
48.Ld. Counsels for the defence have next emphasized a lot on the point that there was delay of about 3034 days in sending the sample parcels to the laboratory and hence it creates doubt in the case of the prosecution. In my view, mere delay in sending the sample parcels to the laboratory cannot be a ground to presume tampering with the case property. The delay would be material only where suspicion as to the tampering with case property is brought to the notice of the court. Where there is absolutely no plausible evidence to indicate tampering with the case property, the mere delay in sending the samples to the laboratory cannot be fatal to the case of the prosecution. The prosecution has completed the link evidence of this case by examining all the material witnesses i.e. Inspector Rajender Singh Sehrawat (PW8) to whom the case property was handed over by HC Anil Tyagi (PW7) and SI Anand Swarup (PW10) in the police station; the MHCM ASI M. Baxla (PW4) to whom the case property was FIR No. 45/10 PS Special Cell Page No. 24 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
handed over by Inspector R.S. Sehrawat for depositing it with malkhana; Ct. Rajesh Kumar (PW3) who took the sample parcels with CFSL forms from MHCM and got the same deposited with FSL, Rohini and he obtained a receipt thereof which was handed over to the MHCM. All these witnesses have completed the link evidence. There is no evidence to suggest that during the time the case property remained in the possession of the prosecution witnesses, it was tampered with by anybody. Neither any of the prosecution witness had any reason to tamper with the case property nor any such evidence has come on record. Thus mere delay of about 3034 days is not sufficient to see that case of the prosecution with doubt.
49.In a recent case titled as Mohan Lal Vs. State of Rajasthan (2015) 6SCC 222, the Hon'ble Supreme Court of India has held that where the parcel is received at FSL with seal being intact, there is no reason or justification to discard the prosecution case on the ground of delay in sending the sample to FSL. In this case, the Hon'ble court cited another authority titled as Harbir Singh Vs. State of Punjab (2008) 8SCC 557 where there was 40 days gap between seizure and sending the sample to Chemical Examiner and after examining all the circumstances, the Hon'ble Supreme Court held that the opium was seized from the appellant and seals put on the sample were intact till it was handed over to the Chemical Examiner and in this circumstance, the delay itself would not be fatal to the prosecution case.
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50.The contention that there was non compliance of section 57 of the NDPS Act has also no merit. Although accused Sanjeev Kumar was apprehended and recovery was effected by Inspector Satender Sangwan but he was ultimately arrested by the second IO SI Anand Swarup who furnished the report u/s 57 NDPS Act which has been proved as Ex.PW12/A (with regard to accused Sanjeev Kumar). Section 57 NDPS Act is a directory provision. In view of the report furnished by SI Anand Swarup, it cannot be said that any prejudice has been caused to accused Sanjeev Kumar by not furnishing the report of seizure by Inspector Satender Sangwan to his immediate superior officer.
51.The next contention of the defence that non joining of public witnesses has made the case of the prosecution doubtful has also no merit. In State of Kerala Vs. M.M. Mathew 1978 Crl. L.J. 1690, it was held that the public persons have to be presumed to have acted honestly and conscientiously and their evidence cannot be discarded merely on the ground that they are interested in getting the accused convicted. There is no reason why the accused would be falsely implicated by the police officials. It is not the case of the accused persons that the police officials had any grudge against them. We know that public witnesses are disinterested to join such proceedings due to variety of reasons. Hence mere non joining of the public witnesses would not make the case of the prosecution doubtful.
52.Guidelines no. 1/88 issued by the NCB for the purpose of search and seizure proceedings is not a rule of law. It is a matter of practice. In the present case Ld. Counsels for the defence have failed to show that by not following the said FIR No. 45/10 PS Special Cell Page No. 26 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
guidelines, any prejudice has been caused to the accused persons.
53.In view of the above, the prosecution has been able to prove its case beyond reasonable doubt u/s 21(c) NDPS Act with respect to both the accused persons. Hence both the accused persons are convicted u/s 21(c) NDPS Act.
54.Requisite bonds u/s 437A Cr.PC has not been filed by the accused persons inspite of directions of the court dated 05.05.2016.
55.Let the accused persons be heard on the point of sentence on 17.05.2016. Announced in the open court on this 13th day of May, 2016 (Deepak Garg) Special Judge NDPS : New Delhi Patiala House : New Delhi FIR No. 45/10 PS Special Cell Page No. 27 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
IN THE COURT OF SH. DEEPAK GARG : SPECIAL JUDGE NDPS PATIALA HOUSE COURTS : NEW DELHI FIR No. 45/2010 PS Special Cell State Vs. Sanjeev Kumar & Anr.
ORDER ON SENTENCE
Present: Sh. R.K. Bhati, Ld. SPP for the State.
Both convicts from JC.
Defence counsels Sh. Y.K. Saxena for convict Sanjeev Kumar. Sh. K.J.S. Mann, Ld. Counsel for convict Dinebari Debari @ Daniel. Vide judgment dated 13.05.2016, both the accused persons were convicted u/s 21(c) NDPS Act.
The case is today fixed for arguments on sentence to be imposed upon the convicts.
Ld. APP for the State has mainly contended that the offences under the NDPS Act are very serious in nature and the convicts in the present case should be imposed the maximum punishment and that they should not be shown any leniency in view of the gravity of the offence.
On behalf of convict Sanjeev Kumar, it is stated by Ld. Counsel Sh. Y.K. Saxena that he is around 29 years of age and he is the only son of his parents. It is further stated that his father has already expired and the family consists of his mother and grandmother who are very sick and who are completely dependent upon him for their livelihood. It is further stated that he does not have any previous FIR No. 45/10 PS Special Cell Page No. 28 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
criminal antecedent and hence lenient view may be taken by the court.
Ld. Defence counsel Sh. K.J.S. Mann for convict Dinebari Debari has submitted that this convict is around 46 years of age and he belongs to Nigeria and he does not have any previous criminal antecedent and hence lenient view may be taken by the court.
Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is the imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which crime is done. There is no straight jacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.
In the case of State of Karnataka Vs. Krishnappa 2000 (4) SCC 75, Hon'ble Supreme Court has held with reference to sentencing by courts as under:
18. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence FIR No. 45/10 PS Special Cell Page No. 29 of 30 SC No.12/11 State Vs. Sanjeev Kumar & Anr.
commensurate with the gravity of the offence.
Considering the facts that convict Sanjeev Kumar is a young man of 29 years and none of the accused have any previous criminal antecedent, this court is of the opinion that minimum sentence be imposed on the convicts. In the above facts and circumstances, the convicts are sentenced as under:
Name of the Offence Sentence convict Sanjeev Kumar U/s 21(c) NDPS Act RI for 10 years and fine of Rs.1 lac. In default SI for 6 months.
Dinebari Debari U/s 21(c) NDPS Act RI for 10 years and fine of Rs. 1 lac. In @ Daniel default SI for 6 months.
Fine not paid. Benefit of section 428 Cr.PC is given to the convicts and the imprisonment already undergone by them shall be set of against the substantive period of sentence awarded to them.
After the completion of sentence of convict Dinebari Debari, the Superintendent, Jail is directed to intimate to FRRO before he is released.
Copy of the judgment and the sentence be given to the convicts free of cost. Copy of the order be sent to Jail Superintendent for compliance.
File be consigned to record room.
Announced in the open court
on this 17th day of May, 2016 (Deepak Garg)
Special Judge NDPS : New Delhi
Patiala House : New Delhi
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