Delhi District Court
State vs . 1. Pankaj Sharma on 4 August, 2009
IN THE COURT OF SH. SANJIV JAIN
SPECIAL JUDGE: NDPS: PATIALA HOUSE COURTS, NEW DELHI
Date of Institution:13/02/2004
Judgment reserved on: 31/7/2009
Date of pronouncement: 04/08/2009
SC No. 27/07
ID No. 02403R0176662004
FIR 106/03
P.S. Nr. Branch
U/s. 21 NDPS Act
State Vs. 1. Pankaj Sharma
s/o Sh. Ramesh Chand Sharma
R/o. village Guldiya PS Meerganj Distt.
Barely U.P.
JUDGMENT
1. Prosecution case in brief is that on 14/12/2003 at about 8:30 p.m. SI Kuldeep Singh received a secret information about accused Pankaj Sharma involved in supply of smack that he would come near hotel Intercontinental, Connaught place between 9:30 p.m. to 10 p.m. to supply smack to a foreigner. The information was conveyed to SHO 1 who after verifying from the informer, informed ACP who directed to conduct raid.
2. SI Kuldeep Singh constituted a raiding party comprising of Inspector S.P. Kaushik, HC Bijender, HC Kuldeep, Ct. Dilawar, Ct. Suresh and Ct. Rajbir Singh. They reached near fire station outer circle Connaught Place in vehicles bearing no. DL1CF5342 and DL1B3570. There 3 passerby were requested to join but none agreed. They all went away without telling their names and addresses showing their unavailability. The members of the raiding party took their position. At about 9:40 p.m. one person was seen coming from the Barakhamba Road carrying a heavy suit case in his right hand. He stopped near high mast light point between pole no. 12 and 13 and started waiting for someone. Thereafter at 9:50 he retreated. He was apprehended. He revealed his name Pankaj Sharma. He was apprised of the information and a notice/s 50 NDPS Act was served upon him apprising of his legal right to be searched before a Gazetted Officer/Magistrate on which he got recorded his refusal. Search of the suit case was conducted. It was found to contain 2 big transparent polythene bags containing matiala colour powder giving positive test for smack with field testing kit each weighing 5 kgs. Two samples of 5 grams each were drawn. The samples and the case property were sealed with the seal of 2 APS NB Delhi, form 2 FSL was also prepared at the spot on which the seal impression was put. The case property was seized. Rukka was sent to the Police Station through HC Bijender Singh where he handed over it to HC Yudhvir Singh who recorded the FIR. SHO put his counter seal of 1 SHO NBR Delhi on the samples, case property and FSL form and called Moharrar Malkhana with register number 19 and got it entered in the register. Further investigation was conducted by SI Attar Singh who prepared the site plan, arrested the accused. He was also interrogated. From the search of accused, copy of notice u/s 50 NDPS Act and cash were recovered. The sample was sent to the FSL for analysis. As per the report, the powder was found to contain diacetylmorphine and phenobarbital with purity percentage of 0.3% & 5.0% in ExC1 and 0.13% and 10.54% in ExC2 respectively. After investigation, he was sent for trial for the offence punishable u/s 21 NDPS Act.
3. On his appearance, after complying with the requirements contemplated section 207 Cr.P.C and hearing arguments, a prima facie case was made out and the charge was framed against the accused under section 21 (b) of NDPS Act. Accused pleaded not guilty and claimed trial.
4. To substantiate its allegations against the accused, prosecution examined as many as eight witnesses. 3
PW1 Ct. Girish Kumar had taken the samples to FSL vide RC no. 165/21 and stated that so long as, the sample remained in his custody, the same was not tempered with.
PW2 SI Attar Singh did further investigation of this case, arrested the accused vide memo ExPW2/B, prepared the site plan ExPW2/A, conducted personal search vide memo ExPW2/C, prepared body inspection memo ExPW2/E as well as his arrest report u/s 57 NDPS Ct. He also recorded disclosure statement of accused ExPW2/D. On 18/12/2003 he took the accused to the house of Anish in village Gullaria, District Barelli from whom he had allegedly received 10 kg. heroin. He obtained FSL report ExPW2/G. PW3 HC Yudhveer Singh was the duty officer. He recorded the FIR on receipt of rukka sent by SI Kuldeep Singh through Ct. Bijender Singh and handed over further investigation to SI Attar Singh. He proved the copy of FIR ExPW3/A and DD no. 13 ExPW3/B entered by him.
PW4 ASI Vijender Singh was the member of raiding party. He in his examination reiterated the prosecution story. He further stated that he took rukka to PS and got the case registered. He identified the case property ExP1 to ExP13.
PW5 HC Hasan Raja who was posted in the office of DCP 4 proved the two reports u/s 57 NDPS act ExPW5/A and B of which entries were made in the register. He proved the initials of DCP on the reports.
PW6 HC Gyan Prakash was the moharrar malkhana. He received five parcels bearing the seal of 2APS NB Delhi and 1 SHO NBR Delhi, made entry in register number 19 at sl. no. 416. On the same day he had also received personal search of the accused. On 18/12/2003 he got the sample mark A1 and B1 sent along with FSL form to FSL through Ct. Girish Kumar vide RC no. 165/21, made the relevant entry. He proved the entry in malkhana register ExPW6/A and the copy of RC ExPW6/B. PW7 SI Kuldeep Singh was the person who had received the information and led the party. He proved the notice u/s 50 NDPS Act ExPW7/A, reply of accused ExPW7/B, rukka ExPW7/C and stated that at his instance, site plan was prepared. In his presence accused was arrested. He also identified the case property ExP1 to ExP13.
PW8 S.P. Kaushik was the SHO posted at PS Narcotics branch. He stated that on receipt of information from SI Kuldeep, he met the informer. He informed ACP who directed him to conduct raid. Accordingly he directed SI Kuldeep to constitute a raiding party and conduct a raid. He proved the DD no. 8 ExPW8/A in this regard. He 5 retrieated the prosecution story. He called HC Gyan Prakash with register no. 19. He deposited the case property and lodged DD 12 ExPW8/B. He stated that two reports u/s 57 NDPS Act regarding seizure and arrest of the accused were produced before him by SI Kuldeep and SI Attar Singh ExPW5/A and B which he forwarded to ACP Narcotics branch and on 18/12/2003 on his direction, Ct. Girish had taken the sample to FSL.
5. Statement of accused Panakj Sharma U/s 313 Cr.P.C was recorded, wherein he stated that nothing was recovered from his possession and he was falsely implicated in this regard. He did not examine any witness in his defence.
6. I have heard the arguments advanced by Ld. APP for the State and Ld. Counsel Sh. Sanjeev Kumar for the accused and have gone through the evidence on record.
7. Ld. counsel stressed his arguments on the FSL report stating that the first report did not talk the other contents in the substance allegedly recovered. It only indicated about the presence of diacetylmorphine. in the second report, on examination, the substance was found to contain paracetamol caffeine acetylcadeine, monoacetylelmorphine, diacetylmorphine and phenobarbital with percentage of diacetymorphine and phenobarbital ranging from 0.13 - 6 0.3% and 510.54 % respectively. Ld. counsel stated that phenobarbital is not the derivative of opium alcholide. Thus the sample was not the representative o the case property. Ld. counsel further submitted that phenobarbital is a scheduled H drug and does not contain in the list of the psychotropic drug appended with the NDPS Rules. Ld. counsel further stated that both the reports are given by the same expert so how can there be variations in the reports. Thus due compliance u/s 55 NDPS Act is not made. Even otherwise there is a mark difference of purity percentage of diacetylmorphine in the two reports so the tempering of the case property in these circumstances cannot be ruled out.
8. Ld. APP on the contrary submitted that in the first report the contents of diacetylmorphine were given but it was no where mentioned that the substance did not contain the other substances as mentioned in the second report. The difference in the percentage could be due to change in atmospheric conditions and it varies with the lapse of time. Ld. APP also submitted that in other cases also when the samples are sent for analysis, the examiner has given the reports qua the presence of diacetylmorphine and phenobarbital in that substance so it cannot be said that the substance does not contain phenobarbital. Ld. APP further submitted that there is no evidence to show that the case property was 7 tempered within any manner rather the testimony o prosecution witnesses show that the seal of the case property remained intact till it was analysed in the laboratory. Ld. APP further submitted that the testimony of police witnesses is consistent and cogent and prosecution has proved its case against accused beyond reasonable doubt.
9. I have given my thoughtful consideration to the rival contentions.
10. In the instant case the police party apprehended the accused on receipt of secret information by PW7 as per which the accused Pankaj would come near hotel Intercontinental Connaught place between 9:30 - 10:00 to supply smack to a foreigner. The said information was recorded vide DD no.8 mark X1. The informer was also produced before the SHO who discussed this information with the ACP and on his instructions, the raid was conducted. The SHO Insp. S.P. Kaushik himself accompanied the raiding team and in his presence some passersby were requested to join the raid but none agreed. The police party took their position and at about 9:40 p.m. the accused was spotted at Barakhamba road when he was carrying a heavy suitcase in his right hand. He stood between pole no. 12 and 13 for quite sometime and started retreating at 9:50 p.m. Raiding party immediately apprehended him, he was apprised o the information. Accused had 8 revealed his name as Pankaj Sharma whom the notice u/s 50 NDPS Act was served apprising him of his legal right to be searched before Magistrate/Gazetted Officer which he declined to avail by writing on the notice vide reply ExPW7/B on the notice ExPW7/A. The prosecution witnesses correctly identified the suit case which the accused had opened with the help of key in his possession which had two big transparent polythene bags containing matiala colour powder i.e. smack. Each packet was of 5 kg. and on testing it gave positive indication for heroin. PW7 has proved that he had drawn the sample from each packet, filled the FSL form and put his seal 2APS NB Delhi on which SHO PW8 put his counter seal 1 SHO NBR Delhi. This fact is also proved by PW8 in his testimony. PW7 stated hat he had prepared the seizure memo of the cases property vide memo ExPW7/B and thereafter sent the rukka for getting the case registered through HC Bijender Singh . He also stated that that the SHO had taken HC Bijender Sigh with the case property and rukka in his vehicle where PW8 handed over the pullandas FSL form and copy of the seizure memo to PW6 who made entry in register no. 19 ExPW6/A The FIR was recorded by PW3. PW2 Attar Singh stated that from the search of the accused the copy of the notice was recovered and on interrogation he had disclosed that he had brought this material to one Anis living at Barely U.P. He stated that 9 he took him to Barely but the accused could not point out towards the Anis. PW2 and PW7 had also prepared the report u/s 57 qua arrest and seizure which is also proved by PW5 who stated that the reports were received in the DCP office on which the DCP had put his initial. The prosecution has examined the moharrar malkhana PW6, Ct. Girish who had taken the sample to FSL and it is also evident from their testimony that no one tempered the same at any point of time thus ruling out the chances of tempering. In this case the compliance u/s 42,50,55 and 57 NDPS Act have been duly proved as required as provided in the case of Ritesh Chakarborty v. State of Madhya Pradesh 2006(3) JCC (Narcotics) 150.
11. In this case prosecution witnesses were tested on the anvil of examination but I find their testimony intrinsic worth believing and nothing can be drawn that they were interested in the false implication of the accused. I did not find any evidence that the police party had conspired to falsely implicate the accused by planting the case property upon him.
12. It is a case of recovery of 10 kg. of smack. It is not possible to plant such a quantity of heroin upon the accused. Moreover, there is no reason to falsely implicate the accused person. In the case of State of Punjab Vs. Balwant Rai 2005(1) JCC (Narcotics) 103: "The 10 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".
13. It is no doubt true that the information was received at 8:30 p.m. and the accused was apprehended from the Barakhamba Road at about 9:40 p.m., the police party had sufficient time to join independent witnesses before conducting raid or during recovery. The testimony of the prosecution witnesses reveals that on the way they had requested 3 4 passerby to join the raiding party but none agreed and they all went away showing their unavailability without disclosing their names and addresses. So it cannot be said that no effort was made. Joining public person is a rule of caution not the rule of law. If the testimony of police officials is consistent and cogent, it can become the basis of the conviction of the case. The possibility and availability of a public witness for joining investigation is a fanciful myth like meeting of the sky at the horizon. The near you go, the far it becomes and the ultimate meeting point never reaches. The public witness now a days has become a rare commodity. No one is ready to join police investigation either because 11 of the fear of the accused or because of the inconvenience to be suffered in attending the courts. 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 findings with added confidence but the law is well settled that a conviction may be based on the testimonies of official witnesses even.
14. As regards contention of Ld. Defence Counsel that there is a marked difference in the FSL report I find that when the sample was sent in the laboratory for the first time, the chemical examiner had given the opinion about the percentage of diacetylmorphine in the sample. When the sample was sent again, the chemical examiner found presence of number of substances i.e. paracetamol caffeine ancetyle codeine, monoacetyle morphine and phenobarbital besides diacetylmorphine.
15. Admittedly in the first report the chemical examiner did not mention about the other contents of the substance but it does not mean that other contents were not present in that substance. This fact is also evident from the fact that in the second report the purity percentage of diacetylmorphine and phenobarbital was ranging from 0.13 - 0.3% and 510.54 % respectively which itself shows that there were other substances in the powder. Since the examiner was mainly concerned with the presence of diacetylmorphine so giving details of other contents 12 were found not warranted in the first report. As regards the contention that there could not be presence of phenobarbital in the heroin, I find that in many cases when the samples of heroin are sent for chemical analysis, the chemical examiner gives the report qua presence of phenobarbital. So it can be said that phenobarbital cannot be present in the substance. So far as variance of percentage in two reports, I find that it could be due to change in atmospheric conditions. There may be many reasons of variations for which benefit is being given to the accused by taking into consideration the percentage of diacetylmorphine in the second report.
16. In this case there is nothing on record to suggest that case property or the sample at any stage of its handling were tempered with. The prosecution has examined all the link witnesses to rule out the possibility of its tempering.
17. As regards presence of phenobarbital in the substance I agree with the contention of Ld. Defence Counsel that phenobarbital is schedule H drug and does not find mention in Schedule I appended to NDPS Rules. Thus NDPS Act would not be applicable to the substance qua presence of phenobarbital.
18. For the foregoing reasons I am of the view that the prosecution has proved its case against the accused beyond reasonable doubt for 13 having been committed offence punishable u/s 21 (b) of the NDPS Act. I therefore hold the accused guilty of the offence and convict him thereunder.
Announced in open court on this 4 day of August, 2009.
th (SANJIV JAIN) Special Judge, NDPS Patiala House, New Delhi.
14 IN THE COURT OF SH. SANJIV JAIN SPECIAL JUDGE: NDPS: PATIALA HOUSE COURTS, NEW DELHI ORDER ON SENTENCE 1 Vide separate judgement Pankaj Sharma has been convicted for the offence punishable 21 (b) of NDPS Act.
2 I have heard ld. counsel Sh. S.K. Santoshi for the convict and ld. APP for the State on the point of sentence.
3 This case pertains to the year 2003. The convict has remained in custody in this case for about 3 years. He is aged about 37 years, married, and has three children. He is an agriculturist by profession. Except this case he has no involvement in any criminal case. After calculation on the basis of purity percentage the actual quality of diacetylmorphine comes to 21.5 grams.
4 Purpose of punishment is to reform and rehabilitate the 15 offender. I find that the convict has learnt enough lesson for doing the wrong. Keeping in view his age, antecedents, family background, I sentence the convict to undergo Rigorous Imprisonment for a period of 3 years and to pay fine of Rs.10,000/ in default thereof to undergo Simple Imprisonment for a period of one year. He is 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 4 day of August, 2009 Sanjiv Jain Spl Judge NDPS : New Delhi Patiala House Courts 16