Delhi District Court
Ncb vs . 1 Achchan Khan on 20 February, 2010
IN THE COURT OF SH. SANJIV JAIN
SPECIAL JUDGE: NDPS: PATIALA HOUSE COURTS, NEW DELHI
Date of Institution:21/01/2006
Judgment reserved on: N.A.
Date of pronouncement: 20/2/2010
SC No. N39/08
ID No. 02403R0033082006
NCB Vs. 1 Achchan Khan
S.P Puttan Khan
R/o Villae Bahata, PO/PS
Visarat Gang, Teh. Anwala,
Dist. Bareli U.P.
2 Mange Lal Kumawat
s/o Sh. Bharu Lal
R/o Village Nakeria
Thesil Sita Mau, Distt. Mandsaur,
M.P.
JUDGMENT
1. The Narcotics Control Bureau (NCB) through its Intelligence officer (IO) Sh. Satender Kumar Tomer filed the present complaint against the accused Achchan Khan and Mange Lal Kumawat . 1
2. The facts emanating from the complaint are that on 27/7/2005 at about 7:00a.m. Sh. P.C. Khandhuri received a secret information that one person namely Achchan Khan@ Raju involved in supply of heroin in Delhi after procuring it from Bareily would come near Shivaji College main gate in between 8:00 a.m. to 9:00 a.m .to deliver huge quantity of heroin to his customer. He after reducing the said information in writing submitted it to the senior officers who authorised him to conduct raid. A team under him went to the fly over Shivaji Enclave with the informer. One Mustafa Sheikh was joined as independent witness. On the identification by the informer, the raiding team apprehended the accused Achchan Khan who was standing in front of the gate for about 5 minutes. He was told about the information, served a notice u/s 50 NDPS Act but he refused his search before a gazetted officer or a magistrate. He was holding a yellow polythene bag in his right hand bearing the print 'PRIIKNIT' 'style' which on checking was found to contain two transparent packets each weighing 1 kg. which had powder like substance testing positive for heroin. Two samples of five grams each were taken out from each packet. The samples and the case property were sealed with the seal of Narcotics Control Bureau DZU 5 using paper slips. Test memo in triplicate was prepared on which facsimile seal was appended. A panchnama was drawn. Accused was given summons u/s 67 NDPS Act to appear before Sh. Manoj Kumar, IO in the NCB office. The case property was deposited in the malkhana along 2 with the test memos. A report u/s 57 NDPS Act was submitted to the senior officers.
On 27/7/2005 at 2:00 p.m. accused Achchan Khan tendered his statement u/s 67 NDPS Act that the alleged contraband was given to him by Mange Lal Kumawat r/o Mandsaur. He gave his telephone number. Consequent upon the recovery and on the basis of the statement, accused Achchan Khan was arrested on 27/7/2005 and the report qua arrest u/s 57 NDPS Act was submitted by Sh. Manoj Kumar to the senior officers.
Surveillance was kept on Mange Lal Kumawat. A raiding team under Sh. H.K. Pandey went at Mandsaur where one Insp. R.K.Singh STF Madhya Pradesh was joined. Accused Mange Lal Kumawat was found standing in the lawn of Govt. hospital Mandsaur. He was encircled . He was told about the information given by Achchan Khan and served a notice u/s 50 NDPS Act. One Ramesh was joined as witness. He was holding a off white plastic bag in his right hand which had one towel and one black colour polythene containing light brown colour powder giving test for heroin weighing 3.500 kg. Two samples of five grams each were taken out from the packet. The samples and the case property were sealed with the seal of Narcotics Control Bureau DZU 5 using paper slips. Test memo in triplicate was prepared. A panchnama was drawn. Accused Mange Lal Kumawat was given summons u/s 67 NDPS Act 3 to appear before Sh. Satender Tomer, IO where he tendered his statement admitting his role in the recovery and seizure of heroin. He was arrested. Reports u/s 57 NDPS Act were submitted to the senior officers.
The samples along with the test memos and forwarding letter were sent to CRCL. As per the CRCL report dated 23/8/2005, the sample 1A and 2A were found to contain diacetylmorphine with their purity 17.5% and 19.7% respectively. The sample mark A1 as per report dated 30/11/2005 was found to contain diacetylmorphine with purity 18.5%. After investigation the accused were sent for trial for offence punishable u/s 21 and 29 of the NDPS Act.
3. On their appearance, after complying with the requirements contemplated u/s. 207 CrPC and hearing arguments, a prime facie case was made out under section 29 r.w.s. 21 and 21 NDPS Act against both the accused. Charge was framed. They pleaded not guilty and claimed trial.
4. To substantiate its allegations against the accused, prosecution examined as many as ten witnesses.
PW1 Satender Tomer was present when the statement of Achchan Khan ExPW1/A was recorded by Manoj Kumar, IO. In his presence statement of public witness Mustafa Sheikh ExPW1/B was 4 recorded by Sh. P.C. Khanduri. He was the witness of seizure of 3.5 kg. of heroin from the possession of Mange Lal Kumawat. He gave him summons ExPW1/C and recorded his statement ExPW1/D and F in presence of Sh.R.K. Yadav. He arrested the accused Mange Lal vide arrest memo ExPW1/G and also recorded the statement of Sh. R.K. Singh Insp. SDF ExPW1/J. He submitted a report u/s 57 NDPS Act ExPW1/K collected the CRCL reports and filed complaint ExPW1/L. Sh. R.P. Meena had acknowledged the samples brought by Sh. Shivratan Singh Havaldar and did the chemical analysis. He prepared the report ExPW2/C. He also received one more sample brought by Sh. Bhuvnesh Kumar, issued the receipt, did chemical analysis under the supervision of Sh. M.D. Mundal and gave report ExPW2/F. PW3 Havaldar Shiv Ratan had taken the sample 1A and 2A along with the forwarding letter and test memos to CRCL.
PW4 Sh. Bhavnesh Kumar had taken the samples to CRCL on 7/10/2005.
PW5 Sh.D.K. Beri was the chemical examiner in whose presence PW2 analysed the samples.
PW6 Sh. Manoj Kumar, was the witness of search and seizure of heron from the possession of accused Achchan Khan. He had recorded the statement of Achchan Khan. He arrested the accused and submitted a report u/s 57 NDPS Act ExPW6/E to the senior officers. He 5 proved the notice u/s 50 NDPS Act ExPW6/A, seizure memo ExPW6/B, arrest memo ExPW6/C and identified the case property recovered from the accused Achchan Khan ExP1 and ExP6.
PW7 Sh. H.K. Pandey had gone to Madsaur with the IO R.K. Yadav and Satender Tomer. He was the witness of search and seizure of heroin from the possession of accused Mange Lal Kumawat. He proved the recovery memo ExPW7/B, C, test memo ExPW7/D and recorded the statement of R.K. Yadav ExPW7/F. He had witnessed the arrest of the accused Mange Lal. He has also proved the entries made in the Malkhana regarding deposit of case property and sample and seal movement register vide ExPW7/K and submitted a report u/s 57 NDPS Act. He identified the case property ExQ1 to ExQ6 and ExP7 to ExP9.
PW8 Insp. P.C. Khanduri had received the information ExPW8/A and led the raiding team at Shivaji College fly over. He had given the notice ExPW6/A, seized the case property, drew the samples and deposited the case property in the malkhana. He submitted the seizure report to Sh. R.R. Kumar Superintendent ExPW8/E and recorded statement of Mustafa ExPW1/B. He collected the remnant samples from CRCL and proved the relevant entries ExPW8/G and D. The case property was produced before him which he correctly identified as ExP1 to ExP22.
PW9 Raj Kumar Yadav was the member of the raiding party which had apprehended the accused Mange Lal Kumawat. 6
PW10 Sh. R.K. Singh was the Insp. SDF in whose presence the whole proceedings qua accused Mange Lal Kumawat were conducted.
5. The accused were examined u/s 313 Cr.P.C. wherein they admitted the recovery and their complicity and pleaded guilty.
6. I have heard the arguments advanced by Ld. SPP Sh. Narender Singh for NCB and Ld. counsel Sh. R.S. Gupta for the accused Achchan Khan and Sh. Kamal J.S. Maan Ld. Counsel for the accused Mange Lal Kumawat. I have also gone through the evidence and the material placed on record.
7. The accused have been charged u/s. 21 and 29 of the NDPS Act. Section 21 provides punishment for possessing / selling etc any manufactured drug ...... Section 29 provides punishment for abetment and criminal conspiracy. A person abets the doing of a thing, who engages with one or more 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 of the 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 7 designated a criminal conspiracy.
8. In the present case the secret information ExPW8/A was received by PW8 as per which the accused Achchan Khan had to come near Shivaji College main gate in between 8:00 a.m. to 9:00 a.m. to deliver huge quantity of heroin to his customer. PW8 has stated that he had recorded the information, put up before the senior officers who directed him to conduct raid. Thus due compliance u/s 42 NDPS Act was made.
9. PW8 has stated that a team led by him went to the spot where one Mustafa Sheikh was joined as witness. After about 5 minutes, the accused Achchan Khan was apprehended at the pointing of the informer. He stated that accused was standing in front of the gate of Shivaji college with a yellow polythene bag in his right hand. He stated that after giving him notice ExPW6/A u/s 50 NDPS Act, the search of the bag was taken which had two packets of heroin each weighing 1 kg. He drew the samples 1A, 1B, 2A and 2B sealed the same using the seal Narcotics Control Bureau DZU5 and the paper slips. He proved the panchnama ExPW6/D as well as the test memo EPW8/B prepared during the proceedings. His testimony is duly corroborated by PW6 who had arrested the accused and submitted a report u/s 57 NDPS Act ExPW6/E. Both these witnesses correctly identified the accused as well 8 as the case property. Nothing came in the cross examination to doubt on their veracity.
10. PW8 had submitted a seizure report ExPW8/E to the Superintendent. PW6 stated that he had recorded the statement of Achchan khan ExPW1/A pursuant to the summons given to him u/s 67 NDPS Act. Perusal of it reveals that he had given some personal information which was in his exclusive knowledge. He disclosed that due to greed he came in contact with Mange Lal Kumawat r/o Mandsaur from whom he purchased smack @Rs.2,50,000/ per kg. and gave Rs.50,000/ as advance. PW1 and PW6 have stated that the accused was explained about the provisions of the Act and he had given the statement voluntarily. Nothing in their cross examination came which could lead to an inference that it was not voluntary. The accused during remand proceedings did not make any complaint that he was subjected to torture and his statement was not voluntary.
11. Pursuant to the information given by the accused Achchan Khan as stated by PW1 the surveillance was mounted on the person of the accused Mange Lal Kumawat. He was apprehended on 5/10/2005 from the lawn of Govt. Hospital Mandsaur in presence of Insp.R.K. Singh PW10 . In this case prosecution has examined four witnesses of recovery i.e. PW1, PW7, PW9 and PW10 who have stated that from the 9 bag in possession of accused one black colour polythene containing light brown colour powder giving test for heroin weighing 3.500 kg. was recovered. They proved the panchnama as well as the sample proceedings and correctly identified the case property. PW 1 had recorded the statement of Mange Lal Kumawat ExPW1/D as per which, he had supplied the heroin to the accused Achchan Khan. He disclosed that he had taken the heroin from Gobind Singh. His statement clearly implicates him as well as the accused Achchan Khan in the business of drug trafficking. PW1 stated that the statement of Mange Lal was voluntary. The material documents placed with the file do not show that the accused was subjected to torture or pressure or his statement was extracted by use of force rather the proceedings reveal that the accused was arrested from Mandsaur itself, he was produced in the court at Mandsaur and his transit remand was taken. He was subjected to medical examination as per which no physical injuries were found on his person.
12. Hon'ble High Court in the case of Rehmatullah v. NCB 2008 Drugs Case (Narcotics) 471 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. 10
13. In M. Prabhulal v. Assistant Director, DRI 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.
14. In State (NCT of Delhi) v. Navjot Sandhu @ Afasan Guru (2005) 11 SCC 600 (vide para 34) it was held "A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made."
15. In the instant case their statements corroborate each other and nothing can be gathered from their statements that it were extracted by use of pressure. Their statements corroborate the recovery and prove their complicity in trafficking of drug. All these facts go to show that they were party to the criminal conspiracy in acquiring and trafficking of contraband.
16. In this case, testimony of prosecution witnesses is wholly reliable and trustworthy. Nothing could be brought out in their cross examination to discredit them. Documentary and circumstantial evidence on record corroborate their statement. 11
17. In the case of State of Punjab v. 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 v. 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". Present is also a case of huge recovery.
18. In this case all procedural safeguards have been followed as required and highlighted in the case of Ritesh Chakarborty V. State of Madhya Pradesh 2006(3) JCC (Narcotics) 150.
19. In the case of Madan Lal v. State of HP 2003 (3) JCC 1330 it was held that once possession is established, the person who claims that it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge. Section 35 of the Act is given a statutory recognition of this position because of presumption available in law and similar is the position in terms of Section 54 where also presumption is available to be drawn for possession of illicit articles. Further, it is highly unconceivable that the NCB authorities would plant such a quantity of heroin with a view to falsely implicate the accused.
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20. In this case prosecution has examined all the link witnesses i.e PW 8, PW1, PW3, PW4, PW2 i.e. seizing officer, the persons who had taken the sample to CRCL and the Assistant chemical examiner. They have categorically stated that the sample were in intact condition and no tampering was observed. The malkhana entries were proved by PW8 who also identified the case property.
21. It is relevant to mention that during evidence some variation in colour and texture was observed. The samples were again sent for reanalysis as per which the purity of diacetylmorphine came to 1.9%, 0.6% and 1.9%. As observed in number of cases the variation in colour may be due to passage of time and improper storing. Thus accused would be entitled to benefit of subsequent report. In view of the law laid down in the case of Ansar Ahmed vs. State 2005 (4) RCR (Crl.) 393 the net recovery of diacetylmorphine from the possession of accused Achchan Khan and Mohan Lal Kumawat would be taken as 25 grams and 66.5 grams which are the intermediate quantities but less than the commercial quantities.
22. On considering the facts available on record, the case laws supra, the documents, the testimony of witnesses after its detailed scrutiny no doubt is left in my mind that accused Achchan Khan and 13 Mange Lal Kumawat had conscious possession of heroin and they were party to criminal conspiracy in the business of drug trafficking. Further they have pleaded guilty.
23. For the reasons stated above , I convict both the accused guilty of the offence punishable u/s 21 (b) and 29 r.w.s. 21(b) of NDPS Act.
Announced in open Court
th
on this 20 day of February, 2010 Sanjiv Jain
Special Judge NDPS : New Delhi
Patiala House : New Delhi
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IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE NDPS PATIALA HOUSE COURTS : NEW DELHI ORDER ON SENTENCE 1 Vide separate judgement accused Achchan Khan and Mange Lal Kumawat have been convicted of the offence punishable u/s 21 (b) and 29 r.w.s. 21 (b) NDPS Act.
2 Ld. Special PP Sh. Narender Singh for NCB has prayed for maximum sentence provided under the statute and submitted that the sentence should be proportionate to the gravity of the offence. 3 Ld. Counsels submitted that the accused are poor persons and do not have any record of previous conviction. They be given opportunity to reform and rehabilitate.
4 I have considered the submissions.
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 15 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.
5 In the present case, the convicts are involved in the case trafficking of heroin. The effect of consumption of heroin on the society is disastrous. It eats away the life and vigour in the society. Illegal trade of such a high quantity would have adverse impact on the lives of uncountable persons.
6 The incident pertains to the year 2005. The Convict Achchan Khan is aged about 48 years, has five children and does not have any case against him under NDPS Act. He has remained in custody for 4 ½ years. Accused Mohan Lal Kumawat has remained in custody for four years and three months. He is aged about 36 years and has two children. 16 He does not have any other case under NDPS Act. I am of the view that they have received enough punishment for doing the wrong. I am not inclined to further incarcerate them.
7 Taking into consideration the totality of facts and the circumstances, antecedents and family background of the convicts, I sentence Achchan Khan to undergo rigorous imprisonment for a period of four years and three months and to pay fine of Rs.10,000/ in default thereof to undergo simple imprisonment for a period of six months for offence punishable u/s 21 (b) NDPS Act . He is also sentenced to undergo rigorous imprisonment for a period of four years and three months and to pay fine of Rs.10,000/ in default thereof to undergo simple imprisonment for a period of six months for offence punishable u/s 29 r.w.s. 21 (b) NDPS Act. Both the sentences shall run concurrently. 8 I sentence the convict Mange Lal Kumawat to undergo rigorous imprisonment for a period of four years and three months and to pay fine of Rs.15,000/ in default thereof to undergo simple imprisonment for a period of six months for offence punishable u/s 21 (b) NDPS Act . He is also sentenced to undergo rigorous imprisonment for a period of four years and three months and to pay fine of Rs.10,000/ in default thereof to undergo simple imprisonment of six months for offence punishable u/s 29 r.w.s. 21 (b) NDPS Act. Both the sentences shall run concurrently. 17 9 They are given benefit of section 428 Cr.P.C. The case property be confiscated to the state after expiry of period of appeal or revision.
File be consigned to Record Room.
Announced in open Court th on this 20 day of February, 2010 Sanjiv Jain Special Judge NDPS : New Delhi Patiala House : New Delhi 18 SC No. N39/08 NCB vs. Achchan Khan and Ors.
20/2/2010 Present: Ld. SPP Sh. Narender Singh for NCB.
Both accused are in J.C. with counsels.
At this stage both accused want to plead guilty without any pressure, threat or coercion.
Statement of accused u/s 313 Cr.P.C. recorded wherein they admitted their guilt.
Arguments heard.
Vide my separate judgement accused are convicted.
Argument heard on the point of sentence.
Vide my separate order, order on sentence announced.
They are given benefit of section 428 Cr.P.C. The case property be confiscated to the state after expiry of period of appeal or revision. Accused Achchan Khan and Mange Lal Kumawat have paid fine amount.
File be consigned to Record Room.
Sanjiv Jain Special Judge NDPS : New Delhi Patiala House : New Delhi 19