Delhi District Court
State vs . Raja on 15 November, 2010
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS
ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI
S.C. No. 578/06
FIR no. 38/06
PS Narcotics Branch
U/s 21 NDPS Act
State Vs. Raja
S/o Mohd. Nabi
R/o Muhalla Garhi,
KasbaShisgarh,
PS Shisgarh,
Distt. Bareilly, U.P.
Date of Receipt : 19.09.2006
Date of Conclusion of arguments : 09.11.2010
Date of Decision : 15.11.2010
JUDGMENT :
1. The accused Raja has been chargesheeted by PS Narcotics Branch for commission of offence under Section 21 NDPS Act.
2. Story of prosecution in brief is that on 06.05.2006, at about 4.20 pm, a secret informer came to Ins. Brij Pal in his office and informed that a person namely Raja, resident of Bareli, UP, who indulge in supply of heroine, would come between 6 PM to 7 PM at bus stand Mangol Puri, Delhi, if raid is conducted, he can be apprehended. On receipt of this information, SI Brijpal produced the secret informer before SI FIR no. 38/06 : PS Narcotics Branch : State Vs. Raja page no. 1/12 Sudhir Singh, who after satisfying himself about the information, passed on the same to the ACP, Narcotics Branch on phone at his office and ACP ordered to conduct a raid. Ins. Brij Pal recorded the secret information in DD register vide DD no. 20B. Thereafter, a raiding party was formed by SI Brij Pal comprising himself, HC Satbir, Ct. Avtar and Ct. Vir Pal. They all reached at the B block bus stand of Mangol Puri, Delhi. Accused was apprehended. Mandatory provisions of NDPS Act were complied with. From the possession of accused, 3 kg 100 gram heroine was recovered. Samples were taken. He was arrested. After completion of the investigation, the charge sheet against the accused was filed in the Court. The copies were supplied.
3. Accused was charged for the offence punishable U/s 21 NDPS Act by my learned Predecessor. The charge was read over and explained to the accused, to which he pleaded not guilty and claimed trial. Thereafter the case was fixed for prosecution Evidence.
4. Prosecution in order to bring home the guilt of the accused, examined 8 witnesses and thereafter, prosecution evidence was closed.
5. Statement of accused was recorded u/s 313 Cr.P.C, wherein he denied the entire evidence and stated that he is innocent. He has been falsely implicated in this case. Nothing was recovered from him. Accused stated that he was lifted by the police officials from his village FIR no. 38/06 : PS Narcotics Branch : State Vs. Raja page no. 2/12 2/3 days before the said date. His brother Guddu made a telegram to this effect to the senior officers and later on, he was falsely implicated in this case. He also examined DW1 Guddu in support of his contention. Thereafter the defence evidence was closed and the case was fixed for final arguments.
6. I have heard arguments from the learned Additional Public Prosecutor for the State, learned Defence counsel for the accused and perused the record.
7. Ld. Addl. PP submitted that in the present case, there are three recovery witnesses namely PW2 HC Satbir, PW6 Ct. Vir Pal and PW7 Ins. Brij Pal. All the three recovery witnesses have fully supported and corroborated each other and proved the recovery of heroine from the possession of the accused. There is no reason to disbelieve their testimony. All these witnesses have stood through the test of cross examination and fully corroborated each other. The mandatory provisions of Sections 42 and 50 NDPS Act have duly been complied with. Samples were taken from the case property and same were sealed at the spot by PW7. Seal after use was handed over to PW2. From the spot, rukka was sent to the PS for getting the case registered. All the pullandas and FSL Form were having seal of 3 APS NB DELHI and seal of 1 SHO NBR DELHI was also affixed by PW5 SI Sudhir Singh in the PS. The case property and FSL Form were duly deposited in the Mal Khana and PW3 MHCM FIR no. 38/06 : PS Narcotics Branch : State Vs. Raja page no. 3/12 HC Jagdish made entry in this regard in register no. 19 at serial no. 594 proved as Ex. PW3/A . On 02.06.2006, sample sealed pullandas along with FSL Form were sent to FSL Rohini through PW8 HC Rohtash vide RC No. 49/21. Ld. Addl. PP further submitted that as per FSL result the exhibits were found containing diacetylmorphine and phenobarbital. It is prayed that as prosecution has discharged its onus and proved beyond doubt that accused was found in possession of contraband, accused be held guilty and convicted.
8. Ld. Defence counsel submitted that in the present case, according to the story of the prosecution, a secret information was received by SI Brijpal Singh. As per law, if a secret information is received, it is required to be reduced into writing and has to be sent to senior officers immediately. In the present case, SI Brijpal did not record the secret information immediately after, it was received. It was also not sent to the senior officers. According to the story, he produced the secret informer before the SI Sudhir Singh and SI Sudhir Singh informed the ACP on telephone, meaning thereby that there was no compliance of Section 42 NDPS Act and benefit of the same be given to the accused and he be acquitted as compliance of Section 42 NDPS Act is mandatory, which has not been done in the present case.
9. I have gone through the record. It has come in the evidence of PW7 Ins. Brij Pal and PW5 SI Sudhir Singh that secret information was received by SI Brij Pal examined as PW7. He produced the secret FIR no. 38/06 : PS Narcotics Branch : State Vs. Raja page no. 4/12 informer before PW5 SI Sudhir Singh, who was working as SHO of PS Narcotics Branch. PW5 also satisfied himself about the secret information and then he informed the ACP that secret information is received. This itself shows that there was compliance of Section 42 NDPS Act. The record also shows that DD no. 20 B was recorded about the secret information and true copy of the same has been proved on record as Ex. PW1/A and it was sent to the ACP. SI Sudhir Singh, who was working as SHO of PS Narcotics Branch was examined as PW5 and he specifically stated that he forwarded the DD no. 20B to the ACP office and the testimony of PW5 on this aspect has gone unchallenged and uncontroverted. HC Om Parkash, from the ACP office was examined as PW4 and he deposed that copy of the DD no. 20B dated 06.05.2006 containing the secret information was received in the ACP office on 06.05.2006 itself. It was duly forwarded by the SHO of PS Narcotics Branch and it was received in the ACP office vide diary no. 824. He also brought the original information received in the ACP Office and photocopy of the same has been proved on record as PW4/A. This testimony of PW4 has also gone unchallenged and uncontroverted. From the testimonies of the above witnesses and documentary evidence available, it is clear that secret information was reduced into writing and was also sent to the senior officer as required under law. In view of the above, I do not find any merit in the contention of the learned defence counsel that there was no compliance of Section 42 NDPS Act.
FIR no. 38/06 : PS Narcotics Branch : State Vs. Raja page no. 5/12
10. Learned defence counsel further submitted that as per the story, the raiding party was formed after receipt of the secret information and they left for the spot. The spot was about 2030 kilometer from the police station Narcotics Branch and on the way, admittedly there were residential area, shops and commercial establishments. Public persons were also moving on the road. Even, on the spot, public persons were present, but no sincere efforts whatsoever were made to join the public witnesses. This nonjoining of the public witnesses, particularly when, they were available, is fatal to the prosecution case and on this ground itself, the accused is liable to be acquitted.
11. So far as the question of nonjoining of public witness is concerned, I am of the opinion that prosecution case cannot be thrown merely on the ground that no public witness was joined, when otherwise, prosecution story stands proved. The witnesses cannot be condemned merely on the ground that he is from the police force, when otherwise, he is trustworthy, reliable and have stood through the test of crossexamination. Having this opinion, I am fortified by the judgment dated 29.04.2010 of Hon'ble Delhi High Court in Crl. No. 841/2005 in case titled as Vijendra @ Behra Vs. State, P.P. Beeran vs. State of Kerala 2001 (9) SCC 571 and Prayag Upnivas Avas v. Allahabad Vikas Pradhikaran, AIR 2003 SC 2302.
12. Learned defence counsel further submitted that Section 50 NDPS Act FIR no. 38/06 : PS Narcotics Branch : State Vs. Raja page no. 6/12 provides the safe guard to the persons against the false implication. It provides that if a police official suspects that a person is in possession of contraband, then he shall serve upon him a notice u/s 50 NDPS Act and inform me about his legal right that his search is to be conducted and if he wants, his search can be conducted in the presence of a gazetted officer or Magistrate, who can be called at the spot or he can be produced before a gazetted officer. In the present case, that mandatory provisions of Section 50 NDPS Act has not been complied with. The accused was never told about his legal right. Only mechanical compliance has been done, which is violation of Section 50 NDPS Act and benefit of the same be given to the accused and he be acquitted.
13. I have gone through the evidence as well as notice u/s 50 NDPS Act. Notice has been proved on record as Ex. PW2/A. In the notice, it has clearly been mentioned that accused is told that it is his legal right that he can get his search conducted either before the gazetted officer or Magistrate, who can be arranged and it is also told to the accused that he can take the search of the police party and the govt. vehicle, but he refused. The refusal of the accused has also been proved on record. All the three recovery witnesses i.e. PW2, PW6 and PW7 has specifically stated that accused was told about his legal right that he can get his search conducted either before the gazetted officer or Magistrate, who can be called on the spot. There is no cross examination to the witness on the aspect that it was not properly FIR no. 38/06 : PS Narcotics Branch : State Vs. Raja page no. 7/12 explained to the accused or that the meaning of the gazetted officer was not explained to the accused except for a customary suggestion that notice was not given. In view of the above, I found that so far as Section 50 NDPS Act is concerned that was properly complied with. However, in the present case, as the recovery is not from the person, but from a bag, which he was carrying on his shoulder, in my opinion, provisions of Section 50 NDPS Act was also not attracted.
14. In the present case, total eight witnesses were examined by the prosecution. There were three recovery witnesses i.e. PW2, PW6 and PW7. All the three recovery witness are consistent and corroborated each other about the apprehension of the accused and recovery of contraband from his possession. According to these witnesses, the accused was carrying a bag on his shoulder and on checking, the bag was found containing two polythenes besides two pants and three shirts. In those two polythenes, 2 kg and 1.1 kg heroine was found. These were marked as A and B. Two samples of five grams each were taken from each polythene. These were sealed with the seal of 3 APS NB DELHI. Form FSL was also filed in, on which also the seal of 3 APS NB DELHI was also affixed. Seal after use was handed over to PW2 HC Satbir. All the pullandas and FSL Form were seized vide memo Ex. PW2/C. Thereafter, PW7 prepared the rukka and he sent all the six pullandas along with FSL Form and copy of seizure memo and rukka to the police station through PW6 Ct. Vir Pal. PW6 handed over the rukka to the duty FIR no. 38/06 : PS Narcotics Branch : State Vs. Raja page no. 8/12 officer PW1 HC Mohan Singh, who recorded the FIR Ex. PW1/C on the basis of the rukka. PW6 also handed over all the sealed pullandas, FSL Form and copy of seizure memo to PW5 SI Sudhir Singh, who was working as SHO at the relevant time. PW5 also affixed his seal of '1 SHO NBR DELHI' on all the six pullandas and FSL Form. He also wrote the FIR number on the pullandas and FSL Form as well as copy of the seizure memo and deposited the same with PW3 MHCM HC Jagdish, who made entry in register no. 19 regarding depositing the sealed parcels and FSL Form in the Mal khana, at serial no. 594, which is proved on record as Ex. PW3/A. PW5 SI Sudhir Singh also carried out the further investigation and arrested the accused. In the personal search of the accused, carbon copy of the notice u/s 50 NDPS Act, which was served upon him was recovered and was proved as Ex. P10. Samples were also sent to the FSL, Rohini on 02.06.2006 through HC Rohtash examined as PW 8 and it has come in his evidence that samples were not tampered with. FSL report is on record, which is admissible u/s 293 Cr.P.C and according to that FSL result, samples were found containing diacetylemorphine and phenobarbital.
15. From the evidence adduced on record, it is clear that accused was found in possession of 3.1 kg of heroine. PW2, PW6 and PW7 have also stood through the test of crossexamination, but nothing could come out in favour of the accused. The FSL result proved on record as Ex. PX also establishes that samples were found to contain FIR no. 38/06 : PS Narcotics Branch : State Vs. Raja page no. 9/12 diacetylemorphine and phenobartital. All the mandatory provisions of NDPS Act have been complied with. There is no reason to disbelieve the testimony of three recovery witnesses, particularly when there is nothing on record to show that they have any reason to falsely implicate or depose against the accused. Prosecution has proved the recovery of contraband i.e. 3.1 kg heroine from the possession of accused. I, therefore, hold the accused Raja guilty and convict him for the offence punishable u/s 21 NDPS Act.
Announced in open Court
on today i.e. 15.11.2010 (V.K. BANSAL)
ADDL. SESSION JUDGE :DELHI
FIR no. 38/06 : PS Narcotics Branch : State Vs. Raja page no. 10/12
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI S.C. No. 578/06 FIR no. 38/06 PS Narcotics Branch U/s 21 NDPS Act State Vs. Raja S/o Mohd. Nabi ORDER ON SENTENCE : 15.11.2010 Present : Ld. Addl. PP for the State.
Convict produced from J.C, with counsel Sh. R.S. Gupta. Arguments heard on the point of sentence. Record perused. Learned counsel for the convict submitted that he is of young age. He is not a previous convict. He is the only bread earner of his family consisting of wife and minor daughter, who is only 20 months old. He is also having old aged widow mother. The case is of intermediate quantity. He has already remained in custody for about 16 months. It is prayed that a lenient view may kindly be taken.
Ld. Addl. PP submitted that convict was found in possession of 3.1 kg heroine. Offence of drugs is not against a person, but it is against the entire nation. It affects not only that fellow, but the entire generation FIR no. 38/06 : PS Narcotics Branch : State Vs. Raja page no. 11/12 and such conviction shall not be dealt with leniency and prayed that severest punishment be awarded to him.
Keeping in view the submissions and the fact that he is not a previous convict and also the fact that quantity recovered from him as per the Hon'ble High Court and Hon'ble Supreme Court is only 35.9 grams, according to percentage of diacetylemorphine found in the contraband recovered, I sentence convict Raja to 4 (four) years rigorous imprisonment with fine of Rs. 10,000/ (Rs. Ten thousand only) for the offence punishable u/s 21 NDPS Act, in default of payment of fine, to further undergo six month rigorous imprisonment. Benefit of Section 428 Cr.P.C is given to him.
Case property be destroyed after the period for filing the appeal is over or no appeal is preferred. Copy of judgment and copy of order on sentence be given to the convicts free of cost.
File be consigned to Record Room.
(V.K. BANSAL) ADDL. SESSION JUDGE :
ROHINI : DELHI : 15.11.2010 FIR no. 38/06 : PS Narcotics Branch : State Vs. Raja page no. 12/12