Delhi District Court
State vs . Pankaj @ Bunty on 31 May, 2013
- 1-
IN THE COURT OF DIG VINAY SINGH : ADDL. SESSIONS JUDGE
SPECIAL JUDGE : NDPS : ROHINI COURTS : DELHI
In the matter of :
SC no. 122/11
FIR no. 110/07
P.S Narcotics Branch
State Vs. Pankaj @ Bunty
U/s 21 NDPS Act
State
Versus
Pankaj @ Bunty
S/o Sh. Ram Avtar
R/o H. No. B34, Anand Vihar,
Uttam Nagar, Delhi.
Date of receipt : 09.01.2008 (Before the accused was declared PO)
20.12.2011 (After rearrest of accused)
Date of arguments : 20.05.2013
Announced on : 31.05.2013
JUDGMENT
1. The above named sole accused was sent up for trial with the case of prosecution, that on a prior, specific and, by name, secret information SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 1 of 33
- 2- against the accused, he was apprehended on 02.11.2007 at 5.10 PM at Subhash Nagar Crossing, near a Petrol Pump, Nazafgarh Road, Delhi and at that time, he was possessing 285 grams of 'heroine'. Out of the recovered quantity of 'heroine', two samples of 5 grams each were separated by the initial investigating officer, before seizing the case property. One of the samples was sent to the Forensic science laboratory, which also gave a report that the material recovered was indeed 'heroine'. The percentage of 'diacetylmorphine', mentioned in the FSL result is 3.97%.
2. On completion of investigation, charge sheet was filed. Thereafter, charge U/s 21 of NDPS Act was framed against the accused on 02.02.2008. The accused pleaded not guilty and claimed trial. Subsequently, the accused stopped appearing in the trial and was declared proclaimed offender on 04.08.2009. He was later on arrested on 09.12.2011.
3. In support of its case, prosecution examined total 9 witnesses. Though, the numbering given to the witnesses would suggest that ten witnesses SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 2 of 33
- 3- have been examined, but It may be mentioned here that Ct. Satpal was initially examined on 16.01.2010 U/s 299 Cr.P.C, when the accused was a proclaimed offender, as PW5, but when subsequently he was examined on 25.10.2012, after apprehension of the accused, he was examined as PW8, therefore, practically in this case, nine witnesses have been examined and not ten. It is so because Ct. Satpal has been examined twice as PW5 and PW8, but the witness is same. 3.1. Out of the 9 witnesses examined, PW6 ASI Harcharan Singh, PW9 HC Sanjeev and PW10 SI Paramjeet Singh are the recovery witnesses.
3.2. PW10 SI Paramjeet Singh, the initial investigating officer, deposed that on 02.11.2007 when he was posted in Narcotics Branch, one secret informer came at his Narcotics Branch office, at 3.00 PM, and gave a secret information to the effect that the accused being resident of Tilak Nagar, Delhi was dealing in 'smack' and he would come to supply 'smack' to someone at Subhash Nagar Petrol Pump between 4.30 to 5.30 PM. He disclosed the secret information to SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 3 of 33
- 4- Inspector Kharak Singh (PW3) and also produced the secret informer before him. PW3 also enquired from the secret informer and on being satisfied spoke to ACP concerned, telephonically. The ACP directed the Inspector to conduct raid. Thereafter, PW10 SI Paramjeet Singh reduced the secret information into writing vide DD no. 18A Ex.PW2/E and furnished a true copy of the said DD before Inspector Kharak Singh (PW3), in compliance of Section 42 of NDPS Act.
3.3. PW6 ASI Harcharan Singh, PW9 HC Sanjeev and PW10 SI Paramjeet Singh, deposed, that thereafter, a raiding party was constituted comprising of them and Ct. Pawan. The raiding party, along with the secret informer, reached the spot at 4.45 PM, after leaving the office at 3.45 PM under DD no 19 A Ex.PW2/F, in a government vehicle driven by Ct. Satbir Singh. On the way to the spot, 56 persons were requested, under Rajouri Garden Metro Station, to become witness but none of them agreed. At the spot also, few public persons were requested to become witness but none agreed. It is deposed that the raiding team members took SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 4 of 33
- 5- position at the spot, and at about 5.00 PM the accused was noticed coming riding a 'pulsar' motorcycle bearing no. DL 3S BF 2435, when he was pointed out by the secret informer. The accused came to the spot and stopped his motorcycle for about ten minutes. He stayed there for those ten minutes and when he was about to go back, he was apprehended. PW10 informed the accused about the secret information received against him and he was also told that he was to be searched and he had legal rights to the effect that he can get his search conducted in presence of a Gazetted Officer or a Magistrate and arrangement can be made to call them at the spot. Thereafter, a notice U/s 50 NDPS Act Ex.PW6/A was prepared and its carbon copy was delivered to the accused. The accused refused to exercise his rights, and his refusal was noted down by PW10 on the original notice U/s 50 NDPS Act which is proved as Ex.PW6/B, bearing signatures of accused. Thereafter, again 56 passersby were requested to become witness but none agreed. Subsequently, search of accused was conducted and from under the belt area of abdomen of the accused, from under the pants, transparent SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 5 of 33
- 6- polythene whose mouth was tied with rubber band was recovered. It was opened and was found to be containing soil coloured powder. A small portion of powder was tested in the field testing kit which resulted positive for 'heroine'. The powder was weighed along with the polythene and was found to be 285 grams. Out of it two samples of 5 grams each were separated which were kept inside two separate small polythene pouches, which were kept in two cloth parcels, which were given Serial no. A & B. The remaining contraband was kept in the same polythene in which it was recovered and it was kept in a third cloth parcel which was given Serial no. C. Thereafter, FSL Form was filled up and all the pullandas and FSL form were sealed. Seal after use was handed over by PW10 to PW6. The three pullandas were taken into possession along with the FSL form vide memo Ex.PW6/C. Thereafter, PW10 prepared a rukka Ex.PW10/A which was handed over to PW9 HC Sanjeev to be taken to the police station for registration of FIR. PW9 was also handed over all the three sealed parcels, the FSL form and a carbon copy of seizure memo to SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 6 of 33
- 7- be taken to police station and to be handed over to the SHO of the police station in compliance of Section 55 of NDPS Act. It is deposed that PW9 left the spot at 8.10 PM along with above mentioned articles.
3.4. PW9 HC Sanjeev and PW3 Inspector Kharak Singh deposed that in the police station, all the three sealed parcels were handed over to PW3 by PW9. PW3 applied his own seal on all the three pullandas as well as on the FSL Form and thereafter, PW3 noted down the FIR number on those things after obtaining the FIR number from the duty officer.
3.5. PW3 Inspector Kharak Singh and PW7 HC Ishwar Singh also deposed that thereafter the three sealed parcels, the FSL form and carbon copy of seizure memo were deposited in the Malkhana by PW3 vide entry in Register no. 19 Ex.PW7/A. PW3 also deposed that he lodged a DD no. 24 A Ex.PW2/G regarding the fact of deposition of case property in the Malkhana.
3.6. PW3 also corroborated the testimony of PW10 and PW1. He SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 7 of 33
- 8- deposed, that on 02.11.2007 PW10 produced the secret informer before him at about 3.10 PM when he was present in his office and on being satisfied with the secret information, he spoke to the ACP, telephonically, upon which ACP directed him to take legal action. Subsequently, PW10 furnished true copy of DD no. 18 A Ex.PW2/E to him in compliance of Section 42 of NDPS Act which he forwarded to the ACP. He also deposed that on that very night at about 1.15 AM in the midnight, the accused was produced before him by SI Sunil Kumar (PW1) after his arrest. He also deposed that on 3.11.2007, two special reports U/s 57 NDPS Act were furnished to him by PW10 SI Paramjeet Singh and PW1 SI Sunil, respectively, which are proved as Ex.PW3/A & Ex.PW1/G, respectively, and he forwarded those reports to ACP. 3.7. PW1 Sunil Kumar (subsequent investigating officer), PW6 ASI Harcharan Singh and PW10 SI Paramjeet Singh deposed that PW1 Sunil Kumar reached the spot on 2.11.2007 along with HC Rajender at about 10.10 PM. At the spot, PW10 handed over the custody of accused, the motorcycle and, all the documents SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 8 of 33
- 9- prepared by him till then to PW1 and also apprised PW1 about the facts of the case. Thereafter, PW1 prepared site plan Ex.PW1/A and interrogated the accused. The accused was arrested vide arrest memo Ex.PW1/B and his personal search was conducted vide memo Ex.PW1/C. From the personal search of the accused, a carbon copy of the notice U/s 50 NDPS Act, along with other articles was recovered. Thereafter, PW1 took possession of the motorcycle vide memo Ex.PW1/E and also recorded disclosure statement of accused Ex.PW1/D. Subsequently, the accused was taken to the PS and his personal search articles along with the motorcycle were deposited in the Malkhana. PW1 also recorded his arrival entry in DD register vide DD no. 2A Ex.PW1/F. 3.8. PW1 also deposed that on 03.11.2007, he prepared a report U/s 57 NDPs Act regarding arrest of accused which he furnished to PW3 Inspector Kharak Singh. This witness also proved the carbon copy of notice U/s 50 NDPS Act as Ex.PX. He also deposed that on 08.11.2007, the sample pullanda was sent to the FSL, through PW8 Ct. Satpal.
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- 10- 3.9. PW7 HC Ishwar Singh was the Malkhana moharrar in the police station on the date of incident. He also proved the factum of deposition of case property by PW3 vide entry in Register no. 19 Ex.PW7/A and deposition of personal search articles by PW1 vide entry Ex.PW7/B. 3.10. PW7 HC Ishwar Singh & 8 Ct. Satpal, both deposed, that on 08.11.2007 PW8 carried a duly sealed sample pullanda Mark A to FSL, Rohini from Malkhana along with the FSL form vide RC no. 124/21 Ex.PW7/C and after deposition of the sample pullanda in the FSL, PW8 obtained an acknowledgment Ex.PW7/D which was deposited in the Malkhana.
3.11. PW2 HC Jaivir Singh was the duty officer in the police station who proved registration of FIR Ex.PW2/B and endorsement on rukka Ex.PW2/A. He also proved DD no. 23 A regarding registration of FIR as Ex.PW2/C, as also the DD no. 25 A, 18A, 19A and 24A as Ex.PW2/D, 2/E, 2/F & 2/G, respectively.
3.12. PW4 Om Prakash, proved the Diary Register maintained in the SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 10 of 33
- 11- office of ACP as Ex.PW4/A, to prove the point that on 2.11.2007 vide entry no. 1443, a copy of DD no. 18A was received in the office of ACP in compliance of Section 42 of NDPS Act. He proved copy of the said DD no. 18A received in the office of ACP as Ex.PW4/B. This witness also proved that on 03.11.2007, two special reports U/s 57 of NDPS Act Ex.PW4/D & E were also received in the office of ACP, vide entry at Serial no. 1444 & 1445 in Daily Register Ex.PW4/C. He also deposed that as per record, these reports were sent to the DCP and were received in the office of DCP vide entry no. 3286 & 3287 which is proved as Ex.PW4/F.
4. On conclusion of the prosecution evidence, all the incriminating evidence was put to the accused in his statement U/s 313 Cr.P.C. The defence taken by the accused in his statement is that he has been falsely implicated in the case; nothing was recovered from him; he was picked up from his house on 02.11.2007 and; even his motorcycle was picked up from his house. The accused claimed that on 02.11.2007, certain police officials came to his house and searched his house from where nothing was recovered, but when he demanded a nonrecovery SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 11 of 33
- 12- memo in writing regarding search of his house, he was beaten up by the police officials and then implicated in this case. He claimed that he and his wife were compelled to sign blank papers by the police officials which were later on converted into various documents of this case. Accordingly, the stand of the accused is that he was not apprehended from the spot and no contraband was recovered from him. However the accused did not opt to lead any evidence in his defence.
5. I have heard Prosecutor for the State and Ld. Counsel Sh. Pawan Behl and Sh. Rajesh Juneja for the accused.
6. Perusal of testimony of prosecution witnesses would reveal that in their cross examination nothing material could be bought out to impeach the witnesses. Their testimony is corroborative and trustworthy. There is no plausible reason, as to why the accused would be falsely implicated in the case.
7. Ld. Counsel for the accused first of all contended that even if the case of prosecution is believed, there is noncompliance of section 50 of NDPS Act.
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- 13- 7.1. He argues that the original notice U/s 50 of NDPS Act Ex.PW6/A is claimed to have been prepared by the initial investigating officer and it was also allegedly witnessed by PW6 Harcharan Singh and PW9 Sanjeev Kumar even before delivery of copy to the accused and thereafter, its copy is claimed to have been given to the accused and thereafter, signatures of accused were obtained at point X on this notice, which is improper. He claims that the signatures of accused should have been obtained prior to signatures of witnesses.
7.2. I do not find any force in this contention for the reason that at the most, it is a mere irregularity that the witnesses first signed the notice and then the accused was asked to sign the notice against receipt of copy of notice. U/s 50 NDPS Act, what is important is that the accused should have been made aware of his legal rights that he can get himself searched in presence of a Gazetted Officer or a Magistrate, and which right should have been informed to the accused prior to his search. The prosecution witnesses have deposed that the accused was indeed made aware of his legal SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 13 of 33
- 14- rights and even a written notice was served upon the accused by delivering a carbon copy, which is sufficient compliance of Section 50 of NDPS Act. It really does not matter that the accused signed the notice before or after the signatures of witnesses. 7.3. It is also contended on behalf of the accused that PW6 ASI Harcharan did not depose that the accused was made aware of his legal rights in terms of Section 50 NDPS Act before service of notice U/s 50 NDPS Act.
7.4. Perusal of the testimony of the three recovery witnesses would reveal, that PW6 claimed that after apprehension of accused, the initial investigating officer, PW10, introduced himself to the accused and also disclosed about the secret information against the accused and, thereafter, notice U/s 50 was prepared and a carbon copy of that notice was given to the accused. On this point, PW9 & 10 consistently deposed that accused was first orally made aware of his legal rights to the effect that he has a right to be searched in presence of a Gazetted Officer or a Magistrate and thereafter, the SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 14 of 33
- 15- notice was served, in writing, upon him.
7.5. U/s 50 NDPs Act, what is important is that the legal right of accused must be informed before search. It can be oral, before service of written notice, or it can be at the time of service of written notice. What is crucial is that such rights should be informed before the search is conducted. It really does not matter as to whether the notice was first given in writing or whether the accused was first orally explained his rights and then given a written notice, since compliance of Section 50 has to be done before the search is conducted.
7.6. Even the testimony of PW6 would reveal that before the accused was searched, the contents of the notices were read over and explained to the accused by the investigating officer, and the accused refused to exercise his rights. Then the refusal was noted down and then again the contents of refusal were read over and explained to the accused.
7.7. Perusal of notice U/s 50 NDPS Act would reveal that it is specifically SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 15 of 33
- 16- mentioned therein that the accused had legal right to be searched in presence of Magistrate or Gazetted Officer and that arrangement to call those officers at the spot can be made. The accused was even offered that he can search police team and the vehicle before his search was conducted. PW6 claims that it was thereafter that the accused refused and his refusal was noted down which was also read over and explained to the accused. Thus, in any eventuality, accused was indeed made aware of his legal rights U/s 50 NDPS Act and thus, Section 50 of NDPS Act was indeed complied with in the present case.
7.8. All the three witnesses have consistently deposed about service of carbon copy of notice upon the accused and his refusal. 7.9. Ld. counsel for the accused relied upon the case of State of Punjab Vs. Labh Singh 1997 (1) RCR 565, wherein it was held that when there is no evidence that accused was informed in writing of his right to be searched before Gazetted Officer or Magistrate, the accused has to be acquitted. In the present case, the accused SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 16 of 33
- 17- was indeed served with a notice in writing. Carbon copy of the notice Ex.PX was delivered to the accused and it was recovered in the personal search of the accused, therefore, there is proper compliance of Section 50 of NDPS Act.
8. It is also contended by the accused that there is contradiction in the testimony of prosecution witnesses as to who amongst the relative or friends of accused was informed about his arrest; who came and; whether the said relative or friend came to the spot or somewhere else. It is argued that PW1, the subsequent investigating officer, claimed that no family member of the accused came to the spot but wife of the accused had come to the police station in the morning of 03.11.2007. It is also argued that as against this, PW6 claimed that the wife of the accused came to the spot and signed the arrest memo but he deposed that she had come to the spot herself while she was searching for the accused who had not reached his house and that the wife of the accused left the spot before the police team left the spot. PW10 remained silent as to whether wife of accused came to the spot. SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 17 of 33
- 18- 8.1. Perusal of the arrest memo Ex.PW1/B would reveal that at Serial no. 7, which pertains to the name, address and telephone number of the person informed about the arrest of accused, contains the name of wife of accused as also her signatures. Whether the wife of accused came to the spot or she came and signed the arrest memo in the police station does not really make any difference in the decision of this case. The difference of version on this point by the witnesses does not cast a shadow of doubt over the entire fact of recovery of contraband from the accused, which has been consistently deposed by the witnesses and which is found trustworthy.
8.2. It is also argued that there is over writing on the date of arrest in the memo Ex.PW1/B. Indeed at point X, in column no. 6 of the arrest memo, there is an over writing on the date and it appears that initially the month mentioned was October which was changed to November and also it appears that the date of 'second' was changed to 'third'. But in that very column no. 6 of the arrest memo, the correct date and time has been mentioned by the investigating SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 18 of 33
- 19- officer SI Sunil, who has also countersigned the over writing. Below the signatures of investigating officer, on the bottom of page of Ex.PW1/B, the date is clearly mentioned as 03.11.2007 which does not contain any kind of over writing or correction. Attention of SI Sunil was not drawn to this fact in his testimony, which could have given him an opportunity to explain it. It is nobody's case that the accused was apprehended in the month of October and therefore, I do not find any force in the contention that merely because there is some over writing at one place on the document, the entire case should be disbelieved. The accused was arrested in the midnight of nd rd the night intervening 2 & 3 November, 2007 at 12.10 AM and quite a good number of people can commit this kind of mistake in writing 02.11.2007 instead of 03.11.2007 immediately after 12 in the midnight when the next day commences. No unnecessary weightage can be given to this fact.
9. It is next argued by the accused that the copy of log book of government vehicle has not been filed on record by the prosecution. SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 19 of 33
- 20- 9.1. Prosecution witnesses were questioned in this regard in their cross examination by the accused, in which PW6 claimed that the investigating officer or the driver did not make any entry in the log book. PW10 also deposed that only PW1 Sunil can tell about the filling up of log book, but he did not make any entry in the log book. PW1 SI Sunil deposed that the log book was filled up but its copy was not filed on record. If the accused was so convinced that the log book of vehicle was not containing entries, the accused was well within his right to have summoned the log book either during cross examination of these witnesses or during defence evidence. The accused did not chose to call for the log book and therefore now it does not lie in the mouth of accused to claim that the log book would have revealed that the police party did not go to the spot. Thus, I do not accept this contention also.
9.2. In support of this contention of absence of entries in the log book of the vehicle, reliance is placed by the accused on the case of Eze Val Okeke Vs. NCB 2005(1) JCC (Narcotics) 57. In that case, there was absence of entries in the log book of the official vehicle, SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 20 of 33
- 21- whereas, in the present case, the accused did not take any steps for calling of the log book of the vehicle to show absence of any such entries. In the case relied upon by the accused, there was also absence of collection of evidence by the investigating officer to connect the accused with the premises in question and, therefore, benefit was given to the accused. That case is distinguishable on facts and does not apply in the facts of the present case.
10. It is also argued that no independent witness is joined. Admittedly, no one from the petrol pump was requested to become witness and only passersby were requested, which indeed is noncompliance of Section 100(4) of Cr.P.C. But that fact alone cannot be a ground to acquit the accused when the testimony of PW1, 6, 9 & 10 is consistent as to recovery of contraband from the accused at the spot. Though, it would have been better, had the investigating officer requested local respectable inhabitants to become witness, but mere noncompliance of this requirement by the investigating officer, which may be deliberate or due to ignorance is not fatal to the case of the prosecution, particularly when the testimony of prosecution witnesses could not be SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 21 of 33
- 22- impeached.
11. It is next argued by the counsel for the accused that tampering with the case property cannot be ruled out in this case and omission to send FSL form to the lab along with the sample pullandas, calls for the benefit to be given to the accused. In this regard, he has placed reliance upon the case of Prem Pal Singh Vs. State of Delhi 87 (2000) Delhi Law Times 709. The said judgment is distinguishable for the reason that in that case there was no evidence to tell that FSL form was filled up at the spot by the investigating officer, or that it was deposited in the Malkhana, or that it was taken from the Malkhana to the lab along with the sample property. The Malkhana register of that case also did not indicate deposition of FSL form along with the case property and therefore, benefit was given to the accused. 11.1. On the other hand, in the present case, PW7 HC Ishwar Singh specifically deposed that along with the case property FSL form was also deposited vide entry in Ex.PW7/A. PW8 Ct. Satpal, who took the sample pullanda to the FSL also deposed that he took the FSL SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 22 of 33
- 23- form with the sample pullanda which was deposited in the lab. There is no suggestion by the accused in cross examination of PW8 that FSL form was not carried by him to the lab. There is no suggestion to this effect even in the cross examination of PW7 also. Perusal of Ex.PW7/A reveals that FSL form was indeed deposited in the Malkhana. Similarly, endorsement dated 08.11.2007, qua the sample pullanda Mark A sent to the FSL, made by PW7 in Register no. 19, also reveals that the FSL form was sent with the pullanda to the lab. Even the RC no. 124/21, vide which the pullanda was taken by PW8 finds mention that FSL form was indeed carried and deposited in the lab by PW8. Even the FSL result of this case finds mention that the seal on the sample pullanda Mark A were tallied with the FSL form and they were found to be in proper condition. Thus, I do not see any evidence in the present file, which may even remotely indicate that the case property of the present case was not kept in proper condition or that it was tampered with.
11.2. Ld. counsel for the accused also relied upon the case of Kamlesh SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 23 of 33
- 24- Rai Vs. U.P. 2001 Criminal Law Journal 1410, in which case when signatures of accused were not obtained on the sample pullandas after recovery, benefit was given to the accused. In that case, it was not the only ground of acquittal of accused, but besides that ground the testimony of police witnesses were found to be contrary on material particulars; the public witness had turned hostile and had not supported the case of the prosecution and compliance of Section 50 NDPS Act was not there. On those various grounds, benefit was given to the accused.
12. In the present case, though signatures of accused were not obtained on pullandas but the testimony of prosecution witnesses is consistent and corroborates each other on material particulars. There is nothing which has come on record to create doubt about the date, time and place and manner of recovery of contraband from the accused. No satisfactory reason has come forth on record as to why the accused would be falsely implicated in the case by the police. No such reason has been put forth by him except suggesting the witnesses that his house was searched and when he demanded nonrecovery memo, he SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 24 of 33
- 25- was beaten and falsely implicated. No medical document, to show that accused was beaten, is put forth. It is claimed by the accused that wife of accused was present in the house when his house was searched and accused was beaten. She did not make any complaint to any authority till date about this incident. It is though claimed by the accused that even signatures of his wife were obtained on the blank papers but yet again she did not make any complaint to any authority at all. Absence of injuries on the accused coupled with the above fact of absence of any complaint to authorities belies the version of accused. No neighbour has been examined to support the version of accused.
13. Even otherwise, neither the accused himself stepped into the witness box nor did his wife step into the witness box to claim the version that their house was searched by the police and the accused was beaten. This version came forth in the cross examination of prosecution witnesses and in the statement of accused. In a statement of accused, the prosecution does not get any opportunity to challenge the version of accused, as the prosecution does not get any opportunity to cross SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 25 of 33
- 26- examine an accused. When the accused chooses not to step into the witness box, which could have enabled other side to challenge his testimony and truthfulness, the accused cannot be allowed to take benefit of a plea raised in the statement only. No satisfactory reason has come forth to prove the point that accused was falsely implicated in the case.
14. Reliance by the accused upon the case of Beni Prasad Vs. State of U.P. 2003 Criminal Law Journal 3185 is also not helpful to the accused as in that case, charges were found to be indefinite, uncertain, vague and ambiguous; the FIR did not disclose compliance of mandatory provisions of Section 50 NDPS Act; there were contradictory statement of witnesses on crucial point of weighing of contraband; there were absence of signatures of accused on the sample pullandas and; various legal infirmities. 14.1. In the present case, there is no such legal infirmity of non compliance of Section 50 NDPS Act or contradiction in testimony of prosecution witnesses to create doubt about the case of SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 26 of 33
- 27- prosecution.
15. Similarly, reliance placed by the accused upon the case of Chameli Devi Vs. State 1993(3) Crimes 418, also does not help the case of accused since in that case the only public witness specifically deposed that neither anything was recovered from the accused in her presence nor she knew the accused and that her signatures were taken on blank papers by the SHO when she was acting as Special Police Officer in those days. The said case does not apply to the facts & circumstances of the present case.
15.1. It is also argued that in that case (Chameli Devi) the SHO did not hand over his seal to anybody and therefore that point was taken into consideration by Hon'ble High Court in favour of the accused. 15.2. In the present case, though the SHO PW3 Inspector Kharak Singh did not hand over his seal after applying it on the pullandas, but PW10 SI Paramjeet who was the initial investigating officer of the case specifically deposed that after applying of seals on pullandas and FSL form, he handed over his seal to PW6. PW6 also SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 27 of 33
- 28- supported this testimony. Thus, when the pullandas and the FSL form had seals of initial investigating officer and when seal was handed over to another person, absence of handing over of seal by the SHO, who affixed his second seals on the pullandas and the FSL form does not create any doubt of tampering of case property. Case property could not have been tampered, without disturbing seal of PW10, and there is no evidence that seal of PW10 was tampered with by anybody.
16. Trivial contradictions in the testimonies of recovery witnesses as to the exact number of persons who were requested to become witness, the colour and size of investigating officer's bag, whether the conversation between the public persons and the initial investigating officer who were requested to become witnesses was hearable to others or not, the distance from which the accused was first noticed, does not create doubt about the genuiness of the case of the prosecution. These are minor variations which are bound to occur.
17. The recovery witnesses have consistently deposed that the accused SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 28 of 33
- 29- was apprehended at the spot and after compliance of Section 50 of NDPS Act, total 285 grams of heroin was recovered from the accused which was seized after drawing samples. They have deposed consistently that FSL form was filled up at the spot. Other prosecution witnesses have completed the chain of deposition of case property in the Malkhana. There is no evidence of tampering with the case property in any manner and there is no plausible reason, as to why the accused would be falsely implicated in the case. Rather the testimony of PW6, PW9 & PW10 is believable and trustworthy in this regard. The testimony of other prosecution witnesses is also in lines to the case of prosecution. PW 3 & 4 have proved compliance of Section 42 & Section 57 of NDPS Act within the stipulated period. In the light of evidence on record, the prosecution has succeeded in proving its case beyond reasonable doubt that the accused was found in possession of 285 grams of 'heroine' on the date, time and place mentioned above.
18. The question however, is as to whether the recovered quantity was small, intermediate or commercial quantity. What was the percentage of Diacetylmorphine in the FSL result?
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- 30- 18.1. As per the FSL result, the sample tested had 3.97% of Diacetylmorphine. It is argued on behalf of accused that going by this percentage, the total quantity of heroine recovered from the accused would come out to be 11.3145 grams of 'heroine' and thus, the total quantity of heroin seized is below 250 gm. i.e. below the commercial quantity. It is submitted that it is not the total weight of the substance allegedly recovered that is material, but the percentage content of heroin translated into weight that is relevant, therefore, the accused cannot be convicted U/s 21(c) of NDPS Act but he can at the most be convicted U/s 21(b) of NDPS Act. 18.2. The Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act 9 of 2001) (w.e.f. 2102001), rationalised the punishment under the Act by providing graded sentences linked to the quantity of narcotic drugs or psychotropic substances recovered. The sentence structure has changed under the amending Act.
"Small quantity" and "commercial quantity" are defined in Section 2(xxiiia) and Section 2(viia) of the Act. Section 21 provides for proportionate sentence for possessing small, intermediate and SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 30 of 33
- 31- commercial quantities of offending material. As per Entry 56 of the Notification dated 19102001 which deals with heroin, 'small quantity' has been mentioned as 5 gm. and 'commercial quantity' has been mentioned as 250 gm.
18.3. Heroin is an opium derivative as per Section 2(xvi) (e) which says that "all preparations containing more than 0.2 per cent of morphine or containing any Diacetylmorphine" is an opium derivative. Under Section 2(xi), all opium derivatives fall under the category of manufactured drug. Thus, the offending substance is an opium derivative and hence a manufactured drug, the possession of which is in contravention of the provisions of Section 8 of the NDPS Act which provides that no person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter State, export interState, import into India, export from India or transport any narcotic drug or psychotropic substance. The opium derivative found in possession of the accused is prohibited under Section 8 of the NDPS Act and punishable under Section 21 thereof.
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- 32- 18.4. The Statement of Objects and Reasons of the amending Act of 2001 indicates that the intention was to rationalise the sentence structure so as to ensure that while drug traffickers who traffic significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. Thus, the rate of purity is relevant. In the mixture of a narcotic drug or a psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance. It is only the actual content by weight of the narcotic drug which is relevant for the purposes of determining whether it would constitute small quantity or commercial quantity. The intention of the legislature for introduction of the amendment is to punish those persons who commit less serious offences with less severe punishment and those who commit grave crimes, such as SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 32 of 33
- 33- trafficking in significant quantities, with more severe punishment. 18.5. The quantity of 285 grams if multiplied with 3.97% comes to 11.3145 grams which is lesser than the commercial quantity, but greater than the small quantity and, thus, the accused would be punishable under Section 21(b) of the NDPS Act. It is also evident that the appellant was merely a carrier and not a kingpin.
19. In view of above discussion the accused is found guilty and convicted for offence under section 21 (b) of NDPS Act. Announced in the open court st on 31 day of May, 2013.
Dig Vinay Singh ASJ/Special Judge : NDPS Rohini / Delhi SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 33 of 33
- 34- IN THE COURT OF DIG VINAY SINGH : ASJ SPECIAL JUDGE : NDPS : ROHINI COURTS : DELHI In the matter of :SC NO.122/11
FIR NO.110/07
PS NARCOTICS BRANCH STATE VS. PANKAJ @ BUNTY 31.05.2013 ORDER ON SENTENCE Present : Sh. Shiv Kumar, Ld. Addl. PP for State.
Accused in JC.
Counsel Sh. Rajesh Juneja for the accused.
Vide separate judgment of even date, the accused is found guilty and convicted for offence u/s.21(b) of NDPS Act, 1985.
Ld. Counsel for the convict submits that he is prepared for the arguments on sentence.
Arguments on sentence heard from both the sides. It is argued on behalf of convict that the quantity of heroin for which the convict has been found guilty is less than 12 Gms. i.e. slightly double than the small quantity prescribed in the NDPS Act.
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- 35- It is also argued on behalf of convict that the convict is first offender, aged 28 years, with a minor child and wife to support. It is also claimed that father of convict is old and infirm and there is no one else to support the family, who all have suffered already for more than two years incarceration of the convict.
On the other hand, Ld. Prosecutor for the State argues that keeping in view the serious nature of NDPS offences, adequate punishment should be granted.
Under section 21(b) of NDPS Act, the punishment provided is rigorous imprisonment for a term, which may extend to ten years and fine which may extend to one lac rupees.
As observed in the judgment, the quantity for which the accused has been found guilty is 11.3145 Gms. It is slightly more than the double of 'small quantity' prescribed under the Act. For small quantity, the maximum punishment provided is six months with fine upto Rs.10000/.
In the present case, this convict has already undergone imprisonment for 28 months and 7 days i.e. 2 years 4 months and 7 days. He remained in JC from 03.11.2007 to 16.09.2008 and thereafter from 08.12.2011 till SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 35 of 33
- 36- date. The total period of imprisonment thus comes to 28 months and 7 days.
The Statement of Objects and Reasons of the amending Act of 2001 indicates that the intention was to rationalise the sentence structure so as to ensure that while drug traffickers who traffic significant quantities of drugs are punished with deterrent sentence, the addicts and those who commit less serious offences are sentenced to less severe punishment. Under the rationalised sentence structure, the punishment would vary depending upon the quantity of offending material. The intention of the legislature for introduction of the amendment is to punish those persons who commit less serious offences with less severe punishment and those who commit grave crimes, such as trafficking in significant quantities, with more severe punishment.
Keeping in view the abovementioned facts and circumstances, including the quantity, for which the convict is held guilty, and the fact that there is no previous conviction of the convict for any offence, in my considered view, interest of justice would be met, if the convict is sentenced to imprisonment for the period already undergone.
On the convict, a fine of Rs.25,000/ is also imposed. In default of payment of fine, the convict shall undergo simple imprisonment for a period of SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 36 of 33
- 37- two months.
Fine deposited today. Convict be released, if not wanted in any other case.
The case property stands forfeited and confiscated to the State and it be disposed off in accordance with rules.
Copy of judgment and sentence order be supplied to the convict immediately today itself, duly certified by the Reader of the Court.
The convict is directed to file bail bond u/s.437A of Cr.PC in the amount of Rs.25,000/ with one surety of like amount, which shall remain in force for a period of six months from today.
File be consigned to the Record Room.
(DIG VINAY SINGH) ASJ/ROHINI COURTS/DELHI 31.05.2013 SC no. 122/11 FIR no. 110/07 Dated 31.05.2013 Page 37 of 33