Delhi District Court
Ncb vs . Vir Chand Rai & Anr. on 21 April, 2011
NCB Vs. Vir Chand Rai & anr.
IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE - NDPS
PATIALA HOUSE COURTS : NEW DELHI
Date of Institution : 28.04.2006
Judgment reserved on : 29.03.2011
Date of pronouncement : 21.04.2011
SC No. N 149/08
ID No. 02403R0248742006
NCB Vs. Vir Chand Rai & anr.
NCB Vs. 1 Vir Chand Rai
S/o Sh. Asharfi Lal
R/o H.No. 19,
Vill. Rampur Shayam Chandra,
P.O. Rampur, Dist. Vaishali,
Bihar.
2 Netrapal
S/o Sh. Babu Lal
R/o A489, Katputali Colony,
Patel Nagar, Shadipur Depot,
New Delhi
(CONVICTED)
JUDGMENT
1. The Narcotics Control Bureau (NCB) through its Intelligence Office (IO) Sh. Vikas Kumar filed the present complaint against both 1 NCB Vs. Vir Chand Rai & anr.
the accused u/s. 20(b)(ii)(C) and 29 of the Narcotics Drugs and Psychotropic Substances Act (NDPS Act) 1985.
2. The facts emanating from the complaint are that on 30.10.2005 at 1230 hours Sh. P.C. Khanduri IO received an information that one Veera has smuggled ganja from Bihar in truck no. UP12H 7336 and he would come near Azad Pur Mandi Chowk in between 2.00 pm to 3.00 pm on 30.10.2005 to deliver ganja to his customer. He recorded this information and forwarded to Sh. A. Shanker Rao, Zonal Director who after discussing, directed him to constitute a team and take action.
A team under Sh. PC Khanduri (IO) left for the spot in a maruti van. They reached Azad Pur Chowk, opposite Police Station Adarsh Nagar where PC Khanduri joined one Sushil Gupta as witness. They found the aforesaid truck parked in front of the Police Station Adarsh Nagar. Three persons were sitting in the driver's cabin. The officers encircled the truck and asked its occupants about its driver. Bhupender Singh was the driver on the truck. On inquiry, he revealed that the truck contained boxes of fruit juice of Dabur company and some clothes. He pointed towards the accused Veer Chand Rai, one of the occupant and stated that the boxes containing clothes belonged to him. He further revealed that he had loaded 12 2 NCB Vs. Vir Chand Rai & anr.
boxes of clothes on 26.10.05 at near Railway crossing petrol pump, village Lashmipur, District Motihari, Bihar in the said truck. He pointed towards the third occupant namely Netrapal that the boxes were to be handed over to him.
The NCB officers disclosed their identity, told them about the information and took the superficial search of the truck. Besides the cartons of fruit juices, boxes were found wrapped in white plastic bags. Each bag was found to contain two parcels wrapped in black polythene bags tied by jute thread. The parcels were found to contain ganja on looking, smelling and testing. The spot was crowded by lot of persons thus causing obstruction in the navigation of people and vehicles. All the occupants were told to come in the office of the NCB at RK Puram alongwith the truck and the contraband. They reached the office at 5.30 pm. The truck was off loaded. There were 650 boxes of fruit juices and 12 white plastic bags. On opening the plastic bags, 24 black polythene bags were recovered. They were given mark A to X. The total quantity of the contraband ie ganja in the bags was found to be 275 kg. Two representative samples of 25 grams each were drawn from each of the parcels A to X and given mark A1 - A2 to X1 - X2. The remaining contraband of each parcel was wrapped and stitched in cloth pullandas. The samples and the parcels were sealed with the 3 NCB Vs. Vir Chand Rai & anr.
seal of NARCOTICS CONTROL BUREAU DZU 3 using the paper slips which seal he got issued from the office before proceeding for raid. A test memo in triplicate was prepared on which same seal was appended. A recovery memo was prepared. The case property was deposited in the malkhana.
On 30.10.2005 Sh. Manoj Kumar IO served summons u/s. 67 NDPS Act upon both the accused namely Vir Chand Rai and Netrapal who tendered their statements inculpating themselves in the trafficking of ganja. Vir Chand Rai stated that he used to take ganja from Navin Rai of Bihar and supply it to Netrapal. Pursuant to the seizure and the statements, both the accused were arrested. The reports of seizure and arrest u/s. 57 NDPS Act were submitted to the Zonal Director. The samples were sent to the CRCL through Hawaldar Shiv Rattan which on testing answered positive for ganja. Statements of Bhupender Singh and public witness were also recorded. Inquiry was also made about the truck owner and from the office of M/s. Dabur India. Efforts were made to trace Navin Rai, the alleged supplier but no success could be achieved. After the investigation, the complaint was filed against both the accused.
3. On their appearance after complying with the requirements contemplated u/s. 207 CrPC and hearing arguments, prima facie 4 NCB Vs. Vir Chand Rai & anr.
case was made out and the charge u/s. 20(b)(ii)(C) and u/s. 29 r/w. 20(b)(ii)(C) NDPS Act was framed against both the accused persons to which they pleaded not guilty and claimed trial.
4. To substantiate its case, the prosecution examined as many as eleven witnesses.
Pw1 Sh. R.P. Meena was the Assistant Chemical Examiner, CRCL. He received the samples mark A1 to X1, test memo in duplicate and forwarding letter from Hawaldar Shiv Rattan on 3.11.05 and issued the receipt Ex. Pw1/2. He also analysed the samples under the supervision of the Chemical Examiner Sh. M.D. Mandal and gave the report Ex,. Pw1/C finding the samples to be of Ganja.
Pw2 Shiv Rattan Hawaldar had taken the samples to CRCL vide forwarding letter Ex. Pw1/1 and deposited its receipt with the malkhana incharge.
Pw3 Sh. P.C.Khanduri IO had received the information Ex. Pw3/1, collected the seal of Narcotics Control Bureau DZU 3 from Sh. Vikas Kumar as per the entry made in the seal movement register Ex. Pw3/5 and led the team comprising of himself, Sh. N.S. Yadav, Sh. Vikas Kumar and others. He joined Sushil Gupta to witness the proceedings, spotted the truck and did the seizure 5 NCB Vs. Vir Chand Rai & anr.
proceedings vide memo Ex. Pw3/2. He deposited the case property in the malkhana alongwith the test memo where the entry Ex. Pw3/3 was made. He submitted the seizure report u/s. 57 NDPS Act Ex. Pw3/4 to the Zonal Director. He also recorded the statement of Virchand Rai U/s. 67 NDPS Act. Ex. Pw3/7 and of Netrapal Ex. Pw3/8 in the presence of Sh. Manoj Kumar on their dictation. He got the samples sent to CRCL and released the truck on superdari. The case property was produced before him which he identified as Ex. P1 to P 121.
Pw4 Sh. Manoj Kumar IO joined the team in the office of NCB after the recovery. He issued summons to both the accused to tender their statements. He arrested both the accused vide arrest cum jamatalashi Ex. Pw4/3 and Pw4/4. He sent the intimation of their arrest to their relatives vide telegrams Ex. Pw4/6 and Pw4/7 and submitted the arrest report u/s. 57 NDPS Act Ex. Pw4/5 to the Zonal Director. He also recorded the statement of Sh. D.N. Sharma of M/s. Dabur Foods Ex. Pw4/11. The driver Bhupender and the truck owner Anokha Singh also tendered their statements Ex. Pw4/12 and Pw4/13 in his presence.
Pw5 Sh. N.S. Yadav was the member of the team which went to the spot. In his presence the whole proceedings were conducted. On 31.10.2005 the public witness Sushil Gupta appeared before him 6 NCB Vs. Vir Chand Rai & anr.
and tendered his self written statement Ex. Pw5/1. He was also present when both the accused were arrested and medically examined vide MLC Ex. Pw5/2 and Pw5/3.
Pw6 Sh. RR Kumar while proceeding on leave had handed over the charge of the seal movement register to Sh. Vikas Kumar. After joining, he received the CRCL report and the remnant samples and entrusted to Sh. Vikas Kumar for further investigation.
Pw7 Sh. Vikas Kumar was the incharge seals. He issued the seal to Sh. PC Khanduri and made the entry Ex. Pw3/5. He was also the member of the team. He issued the summons to the driver Bhupender Singh and the public witness and filed the complaint after the investigation.
Pw8 Sh. A.Shanker Rao was the Zonal Director in the NCB. The information was put up before him on which he issued directions to Sh. PC Khanduri to conduct raid. The seizure report and the arrest report were also submitted to him.
Pw10 Anokha Singh was the owner of the truck. He stated that on the day of incident, Bhupender Singh was the driver on the truck. He proved his statement Ex. Pw4/13 given to the NCB officers.
Pw11 Sh. Dayanand Sharma was the Dy. Manager Transport with M/s. Dabur India Pvt. Ltd. He tendered his statement Ex. 7 NCB Vs. Vir Chand Rai & anr.
Pw4/11 before the NCB and stated that the aforesaid truck was engaged by the company for the transportation of fruit juice cartons from Dabur Nepal Pvt Ltd. to their office at Sahibabad. He got released the cartons on superdari.
5. Both the accused persons were examined u/s. 313 CrPC wherein they controverted the entire prosecution case and stated that they have been falsely implicated in the present case. They denied having tendered any statement and stated that all the papers were manipulated against them. They stated that they were picked up on 29.10.2005 from near Sharab ka Theka, Rajender Nagar, Sahibabad, UP though they never engaged any truck nor were involved in illicit trafficking of Ganja.
In defence they examined two witnesses. Dw1 Sh. Pawan Singh was the Nodal Officer Idea. He brought the subscription form in regard to the mobile phone 9911318844 and 9911365252 belonging to Vikas Kumar and NS Yadav and stated that no record / bills are available with the company for the period from 29.10.05 to 1.11.2005 since those numbers were not active at that time.
Dw2 Sh. Manak Chand is the brother in law of the accused Netrapal. He stated that at about 8.00 pm he came to know from his sister that on 29.10.2005, Netrapal had gone to his brother's house 8 NCB Vs. Vir Chand Rai & anr.
at Rajender Nagar, Sahibabad from where he did not return. He called on his mobile but found it switched off. He stated that from a person resident of Sahibabad he came to know that when he was taking liquor from a theka, he was taken in a vehicle. He found his vehicle unclaimed in the police post of Sahibabad.
6. Accused Virchand Rai examined himself u/s. 315 CrPC. He stated that on 29.10.2005 he was lifted from Sharab ka theka near Balaji Dharam Kanta, Sahibabad where he had gone to purchase some liquor. He stated that he was subjected to physical beatings and his signatures were taken on some blank papers.
7. I have heard the arguments advanced by Ld Spl PP Sh.
Rajesh Manchanda for NCB and Sh. Tanveer Ahmed for the accused Vir Chand Rai and Sh. R.S. Kundu for the accused Netrapal.
8. Ld counsel Sh. Tanveer Ahmed contended that the truck was allegedly seized from the place in front of the police station Adarsh Nagar but no one from the police station was called. There were two more persons in that truck ie Bhupender and the cleaner but they were let off. No reason has been given by the prosecution why they 9 NCB Vs. Vir Chand Rai & anr.
were not made accused. Bhupender did not come in the witness box. The accused had retracted from the statement at the earliest available opportunity. The secret information was qua Veera and not qua Vir Chand Rai. So called independent witness of recovery namely Sushil Gupta was not examined by the prosecution. It is not believable that a driver not known to the accused would permit the accused to carry the goods in the vehicle in violation of the permit conditions. Ld counsel stated that the accused was lifted from Sahibabad and was falsely implicated by planting the recovery on his person.
9. For accused Netrapal Ld counsel Sh. R.S Kundu contended that the accused was not named in the secret information. There are contradictions as to the time when the search proceedings were concluded. The conscious possession of the accused was not proved. No cash was recovered from his possession to show that the accused had come to receive the contraband from the accused Vir Chand Rai. Except the statement recorded u/s. 67 NDPS Act that too was retracted, there is no evidence to connect the accused with the alleged recovery. Ld counsel stated that the accused was lifted from Sahibabad which fact is also proved from the testimony of Dw2 who has stated that the accused motorcycle was standing in 10 NCB Vs. Vir Chand Rai & anr.
abandoned condition in the police post Sahibabad. The statement u/s. 67 NDPS Act is also not in the handwriting of the accused.
10. Ld Spl PP per contra argued that it is a case of recovery of huge quantity of ganja. Accused Vir Chand Rai had to deliver ganja to the accused Netrapal. Both the accused were apprehended from the cabin of the truck with the contraband at the place opposite police station Adarsh Nagar. Their statements clearly inculpate them in the trafficking of contraband. During investigation Bhupender was not found involved so he was discharged. Efforts were made to trace the public witness but he was not found living at the said address. The presumption u/s. 35 and 54 of the NDPS Act is available to the prosecution which the accused failed to rebut. Since the public witness had been joined before the alleged search so no one from the police station Adarsh Nagar was called to witness the proceedings. The material documents duly support the case of the prosecution.
11. I have considered the rival contentions and gone through the evidence and the documents on record.
12. The accused have been charged u/s. 20 and 29 of the NDPS 11 NCB Vs. Vir Chand Rai & anr.
Act. Section 20 reads as whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder Produces, manufactures, possesses, sells, purchases, transports, imports interState, exports interState or uses cannabis shall be punished....
Section 29 provides punishment for abetment and criminal conspiracy. A person abets the doing of a thing, who engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to doing of that thing. Criminal conspiracy is defined u/s. 120A Indian Penal Code which reads as "when two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.
13. In the instant case, Pw3 had received the information Ex.
Pw3/1 on the basis of which he conducted the raid and did the seizure proceedings. He has stated that on 30.10.2005, he received an information about a person namely Veera that he had smuggled huge quantity of ganja in truck no UP 12H 7336 and he would come at Azadpur Mandi Chowk in between 2.00 pm to 3.00 pm to deliver it to his customer. He stated that he received this information at about 12 NCB Vs. Vir Chand Rai & anr.
12.30 pm and put up it before Pw8 which fact is duly corroborated by Pw8 who also made endorsement on the information authorising Pw7 to issue seal to Pw3 and directing Pw3 to conduct raid.
14. Testimony of the prosecution witnesses shows that Pw3 was accompanied by Pw7 and Pw5 at the time of raid. Pw3 has stated that on reaching the spot, he joined one Sushil Gupta to witness the proceedings. Thereafter they started searching the truck which was found parked opposite Adarsh Nagar police station on the Ring Road which they encircled. He stated that three persons were sitting in the cabin. Bhupender Singh identified himself as driver of the truck and on inquiry he revealed that the truck contained fruit juice cartons of Dabur company and some parcels of clothes. Bhupender pointed towards Vir Chand Rai sitting in the cabin as the owner of parcels of clothes stating that he had loaded the parcels of clothes at the petrol pump near Railway Crossing, Village Lashmi Pur, Motihari, Bihar in his truck on 26.10.2005 telling that he has to hand over the parcels to the accused Netrapal sitting in the cabin. He stated that they told the accused persons of the information and did the search of the truck which was loaded with the cartons of fruit juices and 12 parcels of white plastic bags, each bag containing 2 packets wrapped in black polythene. He stated that the packets were found to contain 13 NCB Vs. Vir Chand Rai & anr.
ganja. He stated that since the proceedings were causing obstruction to the public and the traffic, the truck was brought at the office of NCB where they reached at 5.30 pm. He stated that the parcels were unloaded from the truck. There were 650 cartons of fruit juices and 12 parcels in white plastic bags. He stated that the total ganja in 24 packets was 275 kg and from each packet 2 representative samples of 25 grams each were taken which were sealed with the seal of NARCOTICS CONTROL BUREAU DZU 3 which he got issued from Pw7. He prepared the seizure memo Ex. Pw3/2 and stated that the proceedings were concluded at about 11.40 pm. His testimony is corroborated by Pw7 and Pw5 on all material aspects. I do not find substance in the contention of the accused Netrapal that there are contradictions as to the time when the proceedings were concluded. Pw4 has stated that after the proceedings which concluded at 11.30 pm, he joined Pw3 and issued summons to both the accused to tender their statements. Pw5 and Pw7 have stated that the proceedings were conducted in their presence at about 11.45 pm.
15. Admittedly the information Ex. Pw3/1 relates to the accused Veera but it has come in the testimony of Pw3 that accused Vir Chand Rai is also known as Veera. The recovery was effected from 14 NCB Vs. Vir Chand Rai & anr.
the same truck, number of which was given in the information. The prosecution has also examined Pw10 who has stated that Bhupender Singh was the driver on the truck.
16. As regards the contention, why Bhupender Singh was let off and the cleaner was not made accused, it has come in the testimony of prosecution witnesses that inquiry was made from Bhupender and it was found that he did not know of the contents of the parcels which the accused Vir Chand Rai had loaded in the truck at Motihari. He had simply stated that accused Vir Chand Rai had brought the cloth parcels which he had to deliver to Netrapal. Even both the accused in their statements did not inculpate him in the commission of the alleged offence. The cleaner was not present when the truck was intercepted. Nothing can be attributed from their statements that Bhupender Singh had knowledge that the accused were carrying contraband with them. As regards his examination, summons were sent to him but he was not found living at the said address. It cannot be said that the prosecution intentionally withheld his presence. Qua the examination of independent witness Sushil Gupta, he was also not found living at the said address. Proceedings reveal that the summon u/s. 67 NDPS Act was given to him on the spot to tender his statement on 31.10.2005 and in pursuant thereto he appeared in 15 NCB Vs. Vir Chand Rai & anr.
the NCB office and tendered his statement so there was no occasion for the NCB officers to verify his address before joining him in the proceedings. For these reasons, I do not agree with the contention of Ld defence counsel that the prosecution intentionally withheld their presence. In the instant case the testimony of Pw3 is duly corroborated by Pw5 and Pw7. No material contradictions came in their testimony to doubt their presence on the spot or the recovery in their presence. It is well settled law that it is the quality not the quantity of evidence that matters. The testimony of single witness if found consistent and cogent can be made basis for conviction of the accused. In Delias Christopher v. Customs 2004(3) JCC 147 it was held "it is true that public witnesses inspire more confidence and enable the court to return finding with added confidence but the law is well settled that a conviction may be based on the testimonies of official witnesses even. In Raghuvir Singh v. State AIR 1971 SC 2156 it was held that prosecution is not bound to produce all the witnesses said to have seen the occurrence. It becomes the duty of the court to make an effort and find out the things.
17. In this case, when the truck was intercepted both the accused were sitting in the cabin with the driver. The contraband was recovered from the truck. On questioning it was revealed by 16 NCB Vs. Vir Chand Rai & anr.
Bhupender Singh that accused Virchand Rai had brought the parcels which he had to deliver to the accused Netrapal sitting by his side. The information was also to the effect that the accused Virchand Rai had to deliver ganja to his customer. In the case of Iqbal Moosa Patel Vs. State of Gujarat (2011) 2 SCC 198, the substance was recovered from the truck driven by A4 in which A3 was also travelling. The contention of A4 that he had no knowledge of the fact that A3 was carrying any contraband was negated. It was held that the evidence on record totally belies the version belatedly advanced by both the appellants that both or anyone of them were / was unaware of the presence of the bag or its contents.
18. During the course of investigation the statements of the accused u/s. 67 NDPS Act were also recorded which they did not retract at the earliest available opportunity. In his statement Ex. Pw3/7 Virchand Rai disclosed that he had met Netrapal in Delhi. He was involved in the business of selling ganja. At the asking of Netrapal he went to Bihar, met Navin Rai who arranged 50 kg of ganja which he delivered to Netrapal out of which he received Rs 10,000/ as profit. He stated that Netrapal had asked him to supply 500 kg of ganja. He contacted Navin Rai who arranged about 300 kg of ganja and delivered him at the Railway Crossing, Lashmipur, which he 17 NCB Vs. Vir Chand Rai & anr.
brought in the truck of Bhupender Singh. He stated that Netrapal had to meet him at Azad Pur Mandi, Ring road in front of Adarsh Nagar Police Station where he got parked the truck. He stated that when he was talking to Netrapal about the delivery, he was surrounded by the NCB officers. Accused Netrapal in his statement Ex. Pw3/8 corroborated what the accused Virchand Rai stated in his statement. He stated that he had to take its delivery on 30.10.05 at Azadpur Mandi chowk. He stated that he was in this business for 4 to 5 years. Hon'ble High Court in the case of Rehmatullah v. NCB 2008 (3) JCC (Narcotics) 174 made reference to the judgments concerning the interpretation of section 67 NDPS Act and also referred the case of Raj Kumar Karwal v. Union of India 1991 CrLJ 97 (SC) and held that such statements made to the officers of the Department of Revenue Intelligence are not hit by Section 25 of the Evidence Act.
In M. Prabhulal v. Assistant Director 2003 (3) JCC 1631, it has been held that if the confessional statement is found to be voluntary and free from pressure, it can be accepted.
19. On going through their statements coupled with the material available on record I find that the statements contain certain facts and information which could only be revealed by them. Both the 18 NCB Vs. Vir Chand Rai & anr.
accused were apprehended together. Their statements and the recovery also give rise to the presumption u/s. 35 of the NDPS Act qua their conscious possession of contraband. Both the accused were medically examined vide MLC Ex. Pw5/2 and Pw5/3 but no external injury on their person was observed by the doctor. The accused did not complain to the doctor that they were subjected to third degree or their statements were extracted by use of force. They have failed to show that the statements made by them are false. They were found in the company of each other which fact is proved by the prosecution witnesses. They could not point out any fact mentioned therein is the mere brain waive of NCB officers. In a case of criminal conspiracy or abetting, the direct evidence is seldom available. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution often relies on evidence of acts of various parties to infer that they were done in reference to their common intention. The conspiracy can undoubtedly be proved by such circumstantial evidence. In the case of Eran Eliav V. State 2008 Drugs Cases (Narcotics) 98 it was observed - Both abetment and criminal conspiracy are fiendishly difficult to establish by virtue of direct evidence, it can be established by indirect or circumstantial evidence which is of an impeccable nature.
19 NCB Vs. Vir Chand Rai & anr.
20. In the instant case, on closer scrutiny of the statements coupled with the evidence, facts and circumstances of the case I find that the information given by the accused correlate them. Nothing material came in the testimony of PW3, PW5 and Pw7 to disbelieve them. I do not find any motive with the NCB officers to falsely implicate the accused. The NCB officers did not know the accused persons from before. Recovery is duly proved by the prosecution. Their arrest was made after the statements and material collected during the investigation.
21. It is a case of recovery of huge quantity of ganja. It is not possible to plant such a huge quantity upon the accused person. In the case of State of Punjab Vs. Balwant Rai 2005(1) JCC (Narcotics) 103: "The quantity was large, it was held that the question of implanting does not arise". In the case of Sanjiv Kumar Vs. State of H.P. 2005(1) Crimes 358 (H.P.) it was observed: "It is not believable that the police would implicate an innocent person to such a serious case by planting a huge quantity of charas on his person...... police had no axe to grind in implicating the accused".
22. It was held in the case of Madan Lal and another vs. State of 20 NCB Vs. Vir Chand Rai & anr.
Himachal Pradesh 2003 (3) JCC 1330 that once the possession is established the person who claimed that it was not the conscious possession has to establish it because how he came to be in possession is within its special knowledge. Section 35 of the Act give a statutory recognition to its possession before of a presumption available on record and similar is the position in terms of section 54 where also presumption is available to be drawn from the possession of illicit articles. In the instant case the accused by preponderance of probability of evidence failed to prove that they were not in conscious possession of the same.
23. In the present case the prosecution has examined all the link witnesses ie Pw3 the seizing officer, the malkhana incharge, Pw7 who had issued the seal, Pw2 who had taken the samples to CRCL and Pw1 the chemical examiner. The prosecution has also examined the truck owner who has stated that on the day of incident, Bhupender Singh was the driver. Testimony of Pw11 shows that the delivery of the goods containing fruit juice cartons was to be made at Dabur India office at Sahibabad. The case property was also produced before the prosecution witnesses which they identified correctly. No tampering in the case property or the sample at any stage of the proceedings was highlighted. The prosecution has also 21 NCB Vs. Vir Chand Rai & anr.
proved the reports u/s. 57 NDPS Act which receipt is proved by Pw8. Thus all mandatory compliance as guided and provided in the case of Ritesh Chakarborty Vs. State of Madhya Pradesh 2006 (3) JCC (Narcotics) 150 was made.
24. I do not find substance in the arguments of Ld counsel that no one from the Police Station Adarsh Nagar was called to join the proceedings and it is unbelievable that a driver not known to the accused would permit him to carry the goods in his truck. Rather I agree with the submissions of Ld Spl PP that since before the proceedings, public witness was joined so there was no occasion for the NCB officers to call anyone from the police station to witness the proceedings. It is not the case that some untoward incident had happened after the truck was intercepted. It is often seen that when a vehicle comes from a long route if somebody takes lift, normally the driver permits him. On this account no benefit can be given to the accused. As regards the contention that no cash was recovered from the accused Netrapal, nothing has come in the statement of the accused persons recorded u/s. 67 NDPS Act that Netrapal had to make the payment to the accused Virchand Rai at the time of delivery. As regards the defence that the accused were lifted from Sharab ka theka, Dw2 was not present when the accused was 22 NCB Vs. Vir Chand Rai & anr.
allegedly lifted. No complaint was made to any officer when the accused was allegedly lifted. The prosecution witnesses have categorically stated that the accused were apprehended when they were sitting in the cabin of the truck at Azadpur Mandi chowk. Viewed thereof, the defence led by the accused appears to be unworthy of credence. Facts and circumstances show that that the accused persons in pursuance to their criminal conspiracy had acquired / trafficked ganja a banned contraband in violation of the provisions of the Act or Rule or Order.
25. For the reasons stated above I am of the view that prosecution has proved its case against both the accused persons beyond reasonable doubt. I hold both the accused persons guilty of the offence punishable u/s. 20(b)(ii)(C) NDPS Act r/w Section 29 of the NDPS Act and convict them thereunder.
Announced in open Court on this 21 day of April, 2011 st Sanjiv Jain Special Judge NDPS : New Delhi Patiala House : New Delhi 23 NCB Vs. Vir Chand Rai & anr.
IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE - NDPS PATIALA HOUSE COURTS, NEW DELHI SC No. 149/8 NCB Vs. Veer Chand Rai and another ORDER ON SENTENCE
1. Vide separate judgement both the accused have been convicted of the offence punishable u/s 20 (b) (ii) (C) r.w.s 29 of NDPS Act.
2. Ld. SPP Shri Rajesh Manchanda has prayed for maximum sentence provided under the statute submitting that the accused were involved in traficking of large quantity of gaanja.
3. Ld. Counsel Sh. Tanveer ahmad for the convict Vir Chand Rai submitted that the convict is not a previous convict, aged 41 years, married having six unmarried daughters and there is no one to look after them. He is in custody for about 5 ½ years.
4. Ld. Counsel Sh. R.S. Kundu for the convict Netrapal submitted that he is not a previous convict, aged 44 years, married, has responsibility of three sons and four unmarried daughters and there is 24 NCB Vs. Vir Chand Rai & anr.
no one to lookafter them. He is in custody from the date of arrest.
5. I have considered the submissions.
6. The Hon'ble Supreme Court in the case of Union of India Vs. Kuldeep Singh 2004 Vol. 2 SCC 590 held :
Imposition of sentence without considering its effect on the social order in many cases may be unreally a futile exercise. The social impact of the crime e.g. where it relates to offences relating to narcotics drugs or psychotropic substance, which have great impact not only on the health fabric but also on the social order and public interest, cannot be lost sight of and per se requires exemplary treatment. Any liberal attitude by imposing meager sentences of taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of such offence will be result wise counter productive in the long run and against social interest which needs to be cared for and strengthened by a string of difference inbuilt in the sentencing system. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
7. In the present case, the convicts were involved in the trafficking of gaanja. The effect of its consumption on the society is 25 NCB Vs. Vir Chand Rai & anr.
disastrous. It eats away the life and vigour in the society. Illegal trade of such contraband would have adverse impact on the lives of uncountable persons.
8. The incident pertains to the year 2005. The Convict Vir Chand Rai is aged about 41 years, married and has six daughters. The convict Netrapal is aged about 44 years, married and has three sons and four daughters. They are in custody since the date of their arrest. It is a case of recovery of 275 kg gaanja from their possession.
9. Taking into consideration the totality of facts and the circumstances, antecedents and family background of the convicts, I sentence both the convicts Vir Chand Rai and Netra Pal to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.1,00,000/ in default thereof to undergo simple imprisonment for a period of one year for the offence punishable u/s 20 (b) (ii) (C) r.w.s 29 of NDPS. They be given benefit of section 428 Cr.P.C. The case property be confiscated to the State after the expiry of period of appeal/revision.
File be consigned to Record Room.
Announced in open Court
rd
on this 23 of April, 2011 (Sanjiv Jain)
Special Judge NDPS : New Delhi
26
NCB Vs. Vir Chand Rai & anr.
Patiala House : New Delhi
27