Delhi District Court
State vs . Belraj Sheikh & Anr. on 14 September, 2015
1
State Vs. Belraj Sheikh & Anr.
SC No.9/14
FIR No. 65/14
PS Crime Branch
IN THE COURT OF SH. RAJIV MEHRA
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No. 9/14
FIR No. 65/14
PS Crime Branch
State
Versus
1. Belraj Sheikh
S/o Sh. Jarad Biswas,
R/o Khasra No.160,
Samta Vihar
Mukundpur Extn.,
Delhi
AND
Village Kumarpur,
PO Sangrampur,
PS 70, Pakur,
Distt. Pakur, Jharkhand
2. Gulsher @ Sheru
S/o Mohd. Yashin,
R/o H.No. 9948, Gali No.4,
Multani Dhanda,
Paharganj, Delhi
AND
Mohalla Tovi, Sarai Pakka Bagh,
PS Mandi, Saharanpur,
U.P.
2
State Vs. Belraj Sheikh & Anr.
SC No.9/14
FIR No. 65/14
PS Crime Branch
JUDGMENT
1. The prosecution case is that on 25.5.2014 a secret information was received in the office of ARC Crime Branch at 3.30 pm and it was lodged vide DD No.7 at 4.00 pm. A trap was accordingly laid after compliance of Section 42 NDPS Act near Minto Bridge, Minto Road, near Kamla Market, Delhi.
2. The prosecution case is that at about 5.45 pm, the two accused Belraj Sheikh and Gulsher @ Sheru were apprehended while Belraj Sheikh had handed over the smack to accused Gulsher @ Sheru. Notice u/s 50 NDPS Act was served upon them and their legal rights were explained. As per prosecution case after their refusal, search was made of two of them and one black colour polythene containing brown colour powder was recovered from the possession of accused Gulsher @ Sheru which was supplied to him by accused Belraj. This polythene was checked and it was found containing 200 gm smack inside the black polythene. Two samples of 10 gm each were prepared and were marked A & B. Rest of the smack recovered was kept in the same polythene and was converted into pullanda and was marked as C. FSL form was filled at the spot and the pullanda and FSL form 3 State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch were sealed with the seal of PY and seal after use was handed over to Ct. Javed one of the member of the raiding party. SI Sandeep Yadav took all the pullandas into possession through seizure memo. He prepared rukka and sent Ct. Javed to police station for the registration of the case. SI Sandeep Yadav also handed over the case property alongwith copy of the seizure memo and FSL Form with a direction to produce the same before the SHO Crime Branch. The seal was handed over to Ct. Naresh by Ct. Javed before leaving for PS Crime Branch.
3. The prosecution case is that FIR No. 65/2014, u/s 21 NDPS Act, PS Crime Branch was registered against the two accused and further investigation of the case was assigned to SI Ravinder Singh.
4. As per prosecution case SHO Crime Branch counter sealed the pullandas and form FSL with his seal of VSS and deposited the case property in Malkhana in his supervision.
5. The prosecution case is that during course of investigation SI Ravinder Singh second IO prepared the site plan, 4 State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch interrogated the two accused and subjected them to the arrest. SI Ravinder Singh recorded disclosure statement of the two accused.
6. The further prosecution case is that on 26.5.2014 on the basis of the disclosure statement of accused Belraj a raid was conducted at his house at Khasra No.160, Samta Vihar, Mukund Pur Vistar, New Delhi and from there 2 Kg smack was recovered at the instance of accused Belraj Sheikh kept in a yellow colour polythene. SI Ravinder Singh drew two samples of 10 gm each which were marked D, E and rest of the smack was kept in the same polythene and the same was converted into pullanda given as number Marked F. FSL form was filled up at the spot. All the pullandas were sealed with the seal of RS and seal after use was handed over to Ct. Naresh and these pullandas were taken into possession vide seizure memo.
7. As per prosecution case SI Ravinder Singh filled up the form FSL and handed over all the pullandas, FSL Form and copy of seizure memo to Ct. Javed with a direction to hand over the same to SHO Crime Branch, Delhi. The SHO affixed his own seal of VSS on all the pullandas the same were deposited alongwith 5 State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch the FSL form in Malkhana.
8. During investigation statement of the witnesses were recorded, exhibits were sent to FSL for examination. After completion of the investigation, charge sheet was filed against the two accused u/s 21 and 29 NDPS Act. Both the accused were duly charged and brought to trial.
9. The prosecution examined ten witnesses.
10. PW-1 is HC Harish reader in the office of ACP.
11. PW-2 is Ct. Vijender who deposited the case property at FSL.
12. PW-3 is HC Shambhu Nath DO who proved the FIR as Ex.PW3/A and also the Keyami DD as Ex.PW3/C.
13. PW-4 is SI Ravinder second IO.
14. PW-5 is Inspector Kuldeep Singh. He has forwarded 6 State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch the reports in compliance of Section 42 and 57 NDPS Act.
15. PW-6 is HC Jag Narain MHC (M).
16. PW-7 is Inspector Virender Singh SHO, Crime Branch.
17. PW-8 is Ct. Javed, member of raiding party.
18. PW-9 is SI Sandeep initial IO.
19. PW-10 is Ct. Naresh member of the raiding party.
20. Statement of the accused (s) were recorded u/s 313 Cr.P.C. They denied their involvement in the crime and pleaded false implication. No defence witness has been examined by them.
21. It is submitted by the Ld. APP that prosecution has established its case beyond reasonable doubt against both the accused. They were apprehended at Minto Bridge where 200 gm smack was recovered from accused Gulsher delivered by accused 7 State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch Belraj. It is submitted by Ld. APP that at the instance of accused Belraj recovery of two Kg smack from his house at Samta Vihar has also been made. It is submitted that FSL result Ex.PX supports the prosecution case. It is submitted that accused was served with notice u/s 50 NDPS Act and there is a compliance of other procedural formalities as required by NDPS Act. It is submitted that since the statement of all the recovery witnesses is consistent proving recovery against the accused they should be held guilty for the offence u/s 21 and 29 NDPS Act for the recovery of 200 gm of smack on 25.5.2014 and accused Gulsher should also be held guilty for the offence u/s 21 NDPS Act and Belraj should be held guilty for the recovery of 2 Kg of smack from his house on 26.5.2014 u/s 21 NDPS Act.
22. It is submitted by Ld. Counsel for A2 that he has been falsely implicated in this case. He denied having known accused Belraj or any recovery from him on 25.5.2014. He also denied his presence at the spot on 25.5.2014.
23. According to the counsel mandatory provision of Section 50 NDPS Act was not complied with and other mandatory 8 State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch procedural formalities under NDPS Act were also not complied with.
24. It is submitted that there is a delay of seven days in sending the property to the FSL. The recovery has been effected on 25.5.2014 from A2 whereas the same has been sent to FSL office on 2.6.2014.
25. It is submitted that police has not collected any evidence to prove the charge of conspiracy between him and co- accused Belraj.
26. It is submitted by Ld. Counsel for accused Belraj A1 that whole case of the prosecution is based on the statement of police officials only without any independent witnesses joining them. It is submitted that accused has been lifted from his house and he never gone to Minto Bridge on 25.5.2014 and did not meet with accused Gulsher @ Sheru to whom he does not know at all. It is submitted that so far as recovery of 2 Kg of smack on 26.5.2014 from the house of the accused is concerned, the prosecution has not collected any document to connect the house 9 State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch from where recovery has been effected to accused Belraj.
27. It is submitted that no separate seizure memo of the key recovered by SI Ravinder from accused Belraj has been prepared by him.
28. It is submitted that there is a delay of eleven hours approximately in receiving the information and recovery next day on 26.5.2014.
29. It is submitted that there is a delay of six days in sending the samples to FSL and possibility of tampering cannot be ruled out.
30. This Court has heard the Ld. APP and Ld. Counsels for both the accused at length and have carefully examined the record.
31. As may be noted from the record in this case the alleged recovery of smack has been effected on two occasions:-
(i) on 25.5.2014 of 200 gm of smack from accused 10 State Vs. Belraj Sheikh & Anr.SC No.9/14 FIR No. 65/14
PS Crime Branch Gulsher @ Sheru to whom as per police case same was handed over by accused Belraj. The police case is that both the accused were apprehended at Minto Bridge on 25.5.2014.
(ii) secondly at the instance of accused Belraj on 26.5.2014 in pursuant to the disclosure statement Ex.PW4/B from his house Khasra No.160, Samta Vihar where accused led the police party for such recovery.
32. First of all this Court deals with the recovery effected on 25.5.2014. Prosecution has proved DD No.7 Ex.PW9/A recorded in compliance of Section 42 NDPS Act.
33. The contention of the defence that accused Gulsher@ Sheru while serving with notice u/s 50 NDPS Act was not properly informed about his right to be produced before a Gazetted Officer/Magistrate and thus he was deprived of his reasonable opportunity to defend himself is only misconceived and contrary to record.
11State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch
34. The record shows that notice u/s 50 NDPS Act has been proved as Ex.P5 in case of accused Gulsher @ Sheru and Ex.P4 for accused Belraj Sheikh and copy of the notice has been proved as Ex.PW8/A for accused Gulsher and Ex.PW8/C for accused Belraj and their reply has been proved as Ex.PW8/B for accused Gulsher @ Sheru and Ex.PW8/D for accused Belraj Sheikh.
35. The defence is that both the accused are illiterate persons. They have not been properly explained about their rights to be searched in the presence of Gazetted Officer/Magistrate. It is submitted that they have been served with the notice only but because of their illiteracy they are unable to understand the impact of the same and this way it deprives them of their valuable right u/s 50 NDPS Act.
36. Notice has been prepared in Hindi wherein it has been written that accused has the legal right to be searched either in the presence of a Gazetted Officer or Magistrate and further that before search they may take the search of the IO and other members of the raiding party.
12State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch
37. Even in his examination in chief IO SI Sandeep Yadav heading the raiding party and has been examined as PW-9 has deposed at page 3 that he explained both the accused persons contents of the notice and notice was served by him upon them and accused opted not to conduct the personal search in the presence of Gazetted Officer or Magistrate.
38. The statement of PW-9 also find support from the statement of PW-8 Ct. Javed and PW-10 Ct. Naresh on this point. There is sufficient compliance of Section 50 NDPS Act. Any challenge on the point of notice u/s 50 NDPS Act is unwarranted and has to be rejected.
39. Even in statement u/s 313 Cr.P.C, this defence has not been raised that accused wanted to exercise his right in the presence of a Gazetted Officer/Magistrate. Then moreover the plea of the accused is that he was not arrested at the spot, so now it is not open to the defence to question any defect in the notice u/s 50 NDPS Act.
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SC No.9/14 FIR No. 65/14PS Crime Branch
40. The seizure memo of recovery of smack from accused Gulsher has been proved as Ex.PW8/E. The challenge that this seizure memo bears the thumb impression of both the accused is hardly of any consequence adverse to the prosecution case.
41. The prosecution has proved the report u/s 57 NDPS Act regarding accused Gulsher @ Sheru as Ex.PW1/D which bears the endorsement of ACP as deposed by PW-1 HC Harish Reader in the office of ACP, hence the challenge that ACP has not been examined to prove that endorsement is only to be rejected.
42. It is submitted by the counsel that in this case samples were sent to FSL after seven days and possibility of tampering thus cannot be ruled out.
43. The FSL result has been proved as Ex.PX and as per Para 7 of the same, seals were intact and tallied as per the forwarding authorities specimen seals. In view of this position the apprehension or assumption about tampering is misconceived. Support in this regard may be taken from the judgment in Ashraf Khan Vs. State of Delhi decided on 11.3.2014 where this 14 State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch contention has been rejected in Para 13 of the judgment.
44. The contention that FSL form has not been proved is only based on assumption. As per the record the acknowledgment of case acceptance given by FSL is proved as Ex.PW6/D, wherein it is mentioned that case property was deposited alongwith forwarding letter and as such there is no requirement to prove the FSL form. The support may be derived from Ashraf Khan Judgment (Supra) (Para 17).
45. Even otherwise in this regard the deposition of PW-6 HC Jag Narain is relevant. He has deposed that at the time of depositing of case property with him on 25.5.2014 and 26.5.2014 the seals were intact. According to PW-6 case property was handed over by him to PW-2 Ct. Vijender who has been examined as PW-2 and corroborate the testimony of PW-6 on this point.
46. The further support in this regard may be derived from the FSL result Ex.PX wherein the seals were found intact and tallied with the forwarding authority specimen seal and this rule out any possibility of tampering of case property in this case.
15State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch
47. It is submitted that no public witness has been joined to corroborate the testimony. DD No.7 proved as Ex.PW9/A and DD no.8 proved as Ex.PW9/B are relevant on this point and shows that this information was received in the office through informer at 3.30 pm and vide DD No.7 information was registered at 4.00 pm and departure entry vide DD No.8 Ex.PW9/B was made at 4.30 pm.
48. As per the statement of PW-9 and other witnesses PW-8 and PW-10 they reached the spot at Minto Bridge at about 5.00 pm and on the way 6-7 passers by were requested by the IO who did not join and accused Belraj reached the spot at about 5.30 pm as deposed by PW-9 and other members of the raiding party and within 5-7 minutes accused Gulsher @ Sheru also reached there on motorcycle no. DL4S-ND-7614 blue colour from Connaught Place side and met co-accused Belraj who handed over him smack of 200 gm recovered from him.
49. The testimony of PW-9 is corroborated by the other 16 State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch members of the raiding party PW-8 and PW-10. The evidence shows that there was not much time with the police party to wait for a public witness to join them. If they stop for doing that they would have lost the two accused at the spot. Public witnesses usually are not very inclined and readily available to join the police party for obvious reasons to avoid future harassment. In these circumstances the recovery proved with the evidence of official witnesses cannot be discarded or challenged merely for the reason that it is not associated with the joining of any independent public witness. They are responsible officers. They have no enmity with the accused nor even so imputed to them either in cross examination or in the statement u/s 313 Cr.P.C by accused Gulsher @ Sheru .
50. In view of this position recovery of smack of 200 gm is to be taken as duly proved by believing the testimony of PW-8, PW-9 and PW-10.
51. The investigation is not improper as sought to be challenged. There is no requirement of taking any photograph or videography in law. The recovery has been proved by the official 17 State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch witnesses and also supported by the FSL result. The steps have been taken by the police party in accordance with the provisions of NDPS Act.
52. The plea that accused after arrest was not produced in the nearest police station and it violates Section 52 NDPS Act is only to be rejected. In this case the accused has been arrested by the officials of PS Crime Branch having its jurisdiction all over Delhi and they were produced before SHO, Crime Branch and as such there is no infirmity on this count.
53. Accordingly the charge u/s 21 NDPS Act against accused Gulsher @ Sheru is duly proved.
54. So far as plea that there is no evidence of conspiracy between accused Gulsher and Belraj is concerned, this plea is only to be rejected. It is needless to say that conspiracy is always hatched in secrecy. In the present case also as may be noted DD no.7 was the first information wherein it was informed that accused Belraj would come near Minto Bridge to supply contraband item. Accordingly a raiding party was formed. All the witnesses are 18 State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch consisting in stating that accused Belraj had come to the spot in a TSR and was identified by the secret informer and after about 5-7 minutes the other accused Gulsher @ Sheru also arrived there and he passed on 200 gm smack to other co-accused arrested at the spot alongwith him.
55. The conduct of the two accused in absence of any contradiction coming on record regarding the testimony of the witnesses on this point by itself is sufficient to prove the conspiracy against two of them. They are arriving at the same place at the same time and as deposed by the witnesses PW-8, PW-9 and PW-10 they had seen that 200 gm smack was passed on by accused Belraj to accused Gulsher @ Sheru. Both are conscious about the act being performed by them and is sufficient to prove the factum of conspiracy with each other. Accordingly charge u/s 29 read with Section 21 NDPS Act to be taken as proved against the two accused.
56. So far as recovery of 2 Kg smack on 26.5.2014 from accused Belraj from Khasra No.160, Samta Vihar is concerned that has been made in pursuant to his disclosure statement 19 State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch Ex.PW4/B and this recovery is admissible u/s 27 Indian Evidence Act. So plea that the prosecution did not follow the procedural requirements of NDPS Act is only to be rejected. Support may be derive from Mohan Lal Vs. State of Rajasthan, Date of decision 17.4.2015.
57. Then at the same time this recovery has been effected at the pointing out of accused Belraj Sheikh himself who was with police party at the time of such recovery and led them to his house and any challenge that no documents of the property has been produced to connect him with such property is immaterial. It is accused who is leading the police party to the place of recovery.
58. The challenge on the point of six day's delay in submitting the samples to FSL is only to be rejected for the same reasons and finding as recorded in case of accused Gulsher @ Sheru above.
59. The plea that recovery effected is not supported by independent witness is only to be rejected being hardly of any significance. Police officials are responsible officers. They are not 20 State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch having any ill will or enmity against accused nor any imputed against them by the accused as such the plea that recovery becomes doubtful in absence of any independent public witness is only to be rejected.
60. The contention of the defence that PW-4 SI Ravinder Kept the key with himself and did not deposit the same with MHC(M) and this would make the recovery doubtful is only to be rejected.
61. The recovery has been effected in pursuance to the disclosure statement of accused Belraj proved as Ex.PW4/B. The first day investigation as deposed by PW-4, continued upto late night. The investigation regarding recovery as disclosed in the statement of Belraj was not effected till then and as such if the key was kept by PW-4 SI Ravinder with him and not deposited with MHC(M), it would hardly effect the genuineness of the prosecution case.
62. It is submitted by the Ld. Counsel that no separate recovery memo of key kept by PW-4 has been prepared and it 21 State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch would create doubt about the prosecution story. The contention is only liable to be rejected as the fact of this key find mentioned in personal search memo of accused Bejraj.
63. In this case the contention of defective notice u/s 50 is not applicable for recovery of 2 Kg of smack has been effected from the house of accused Belraj Sheikh. Even otherwise no challenge can be made in view of the statement u/s 313 Cr.P.C by accused himself that he has not been arrested from Minto Bridge, the spot in question.
64. The prosecution has duly proved the case of recovery of 2 Kg of smack as proved by FSL result Ex. PX wherein the recovered substance was found to be containing Diacetylmorphine in this case against accused Belraj. Accordingly he is held guilty for the offence u/s 21 NDPS Act.
Dictated and announced in the open Court on 28.8.2015.
( RAJIV MEHRA ) Additional Sessions Judge(Central) Delhi.
22State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch IN THE COURT OF SH. RAJIV MEHRA ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI SC No.9/14 FIR No. 65/14 PS Crime Branch State Versus
1. Belraj Sheikh S/o Sh. Jarad Biswas, R/o Khasra No.160, Samta Vihar Mukundpur Extn., Delhi AND Village Kumarpur, PO Sangrampur, PS 70, Pakur, Distt. Pakur, Jharkhand
2. Gulsher @ Sheru S/o Mohd. Yashin, R/o H.No. 9948, Gali No.4, Multani Dhanda, Paharganj, Delhi AND Mohalla Tovi, Sarai Pakka Bagh, PS Mandi, Saharanpur, U.P. 23 State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch ORDER ON SENTENCE
1. Ms. Reeta Sharma Ld. Addl. PP for the State.
2. Sh. B.S. Sharma Ld. Counsel for convict Belraj Sheikh and Sh. R.K. Giri Ld. Counsel for convict Gulsher @ Sheru.
3. Heard the Ld. APP and Ld. Defence counsels on the point of sentence.
4. It is submitted by Ld. APP that from convict Belraj Sheikh 2 kg of contraband was recovered which is a commercial quantity.
5. It is submitted by Ld. APP that in this case from convict Gulsher @ Sheru the recovery of 200 gms of contraband was recovered and the FSL result shows that it was containing diacetylmorphine.
6. It is submitted by Ld. APP that punishment U/s 29 of the Act is provides the same punishment as provided for the offence otherwise in the Act.
7. It is submitted by Ld. APP that maximum punishment provided u/s 21 and 29 NDPS Act may be imposed on the two convicts keeping in view the gravity of the offence.
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SC No.9/14 FIR No. 65/14PS Crime Branch
8. On the other hand it is submitted by Ld. Counsel for the two convicts that both are settled in their respective lives and are sole bread earner.
9. It may be observed that Drug Addiction is an enigma to the society. No lenancy is required to be shown to the persons involved in drug business. It is paralyzing the society as a whole. It is a social menace which needs to be dealt with firm hands.
10. The recovery of 200 gm of heroin, is an intermediary quantity and punishment for the same as prescribed u/s 21 (b) NDPS Act is RI for a term which may extend to 10 years and with fine which may extend to Rs. 1 lac.
11. Convict Gulsher @ Sheru is sentenced to undergo RI for a term of 6 years and is imposed with a fine of Rs. 1 lac, in default of payment of fine to undergo further SI for a period of 1 year for the offence punishable u/s 21 (b) NDPS Act.
12. Convict Gulsher @ Sheru is also imposed with the same punishment of imprisonment and fine as far as offence u/s 29 NDPS Act 25 State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch is concerned but substantive sentence in respect of convict Gulsher @ Sheru shall run concurrently for the two offences. He shall pay fine separately for the two offences.
13. As far as accused Belraj Sheikh, is concerned he has been held guilty for his having possession of 2 kg of heroin, which is a commercial quantity.
14. As per Section 21 (c) of the Act, the punishment prescribed is RI for a term which shall not be less than 10 years but which may extend to 20 years and shall also be liable to fine which shall not be less than Rs. 1 lac but which may extend to Rs. 2 lac.
15. Convict Belraj is sentenced to undergo RI for a term of 12 years and is also imposed with a fine of Rs. 2 lac, in default of payment of fine he shall undergo SI for one year.
16. Convict Belraj is also imposed with the punishment for the offence u/s 29 NDPS Act by imposing substantive sentence for a period of RI for 6 years and he is imposed with a fine of Rs. 1 lac, in default of the payment of fine he shall undergo SI for a period of 1 years. Substantive sentence in his case for the offence u/s 21 (c) and 29 NDPS Act shall run concurrently.
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SC No.9/14 FIR No. 65/14PS Crime Branch
17. Benefit of Section 428 Cr.P.C if any be given to both the convicts.
18. Copy of the judgment of conviction and order of sentence be supplied to each of the two convicts free of cost.
19. Case property be destroyed as per rules.
20. File be consigned to record room.
Dictated and announced in the open Court on 14.09.2015.
( RAJIV MEHRA ) Additional Sessions Judge(Central) Delhi.
27State Vs. Belraj Sheikh & Anr.
SC No.9/14 FIR No. 65/14PS Crime Branch