Delhi District Court
State vs 1) Guljaman @ Gullu on 6 July, 2010
IN THE COURT OF MS. SANTOSH SNEHI MANN
SPECIAL JUDGE, NDPS (CENTRAL)
TIS HAZARI COURTS, DELHI
SC No. : 70/2008
FIR No. : 74/2004
U/s : 21/29/61/85 NDPS Act
PS : Narcotics Branch
State Versus 1) Guljaman @ Gullu
S/o Late Sh. Khair Jaman
R/o Village Mokhampura,
PS Pratap Garh, District
Chittorgarh, Rajasthan.
2) Rama Shankar
S/o Sh. Saryu Prasad
R/o I-122, Jahangir Puri, Delhi.
Date of filing of charge-sheet :- 23.12.2004
Date of taking up matter for the first time :- 26.11.2009
Date of conclusion of arguments :- 03.07.2010
Date of Judgment :- 06.07.2010
Sh. Rajeev Mohan, Ld. Addl. PP for the State.
Sh. Sanjeev Kumar, Ld. Defence counsel for accused Guljaman.
Sh. Anupam Sharma, Ld. Defence counsel for accused Rama
Shankar.
JUDGMENT
Accused Guljaman, S/o Late Sh. Khair Jaman and accused Rama Shankar, S/o Saryu Prasad have been charge- sheeted for committing the offence punishable under Section 21 and section 29 of Narcotic Drug & Psychotropic Substance Act (hereinafter referred as the "NDPS Act").
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2. Prosecution story unfolds as under:
(a) On 23.09.2004 one secret informer went to
the police station Narcotics Branch, Kamla Market and informed SI Sunil Kumar that one Guljaman Khan, resident of Chittorgarh, Rajasthan, involved in supplying Heroine, would arrived in between 10.30 am to 11.30 am near Bijli Ghar, Rajpura Road authority to supply huge consignment of Heroine to one Rama Shankar, resident of Jahangir Puri, Delhi. SI Sunil Kumar satisfied himself about the information and thereafter produced the secret informer before Inspector P. S. Hooda, SHO and apprised him about the situation. SHO enquired from the informer and after satisfying himself informed Sh. Mehar Singh, ACP on the telephone about the situation. ACP directed to raid immediately. SI Sunil Kumar recorded the information at about 9.15 am vide DD No. 10 and handed over the copy to SHO in compliance of section 42 of the NDPS Act.
(b) SI Sunil Kumar constituted the raiding party comprising of himself, HC Harcharan Singh, HC Omkar, Ct. Khetaram, Ct. Ashok Kumar and the informer. The raiding party was briefed and at about 9.25 am the raiding party alongwith the secret informer proceeded to the spot in the Government vehicle Ambassador car DL-1CF-
@ A B C D E F G H I J J G K L M E C N O"P D Q R P&S O'N)T P+U M,Q-N QWVYX V O'Z [)Z5\6[8] ^:N)_5N T5`>a?T D Q U V O 3 5342, driven by Ct. Satbir Singh. On the way, SI Sunil Kumar apprised 5 passengers at the ISBT and some passers-by at the spot about the situation and requested them to join the raid, but they expressed their genuine difficulties and left without telling their names and addresses. Government vehicle was parked inside Rajpura Road Authority and driver Ct. Satbir Singh was directed to stay with the vehicle. SI Sunil Kumar briefed the members of the raiding party and at about 10.15 am they took position near the Bijli Ghar within the radius of 50 meters and started waiting for the above mentioned two persons .
(c) At about 10.35 am one person came from the main gate side of the authority and stood near Bijli Ghar. The secret informer identified him as Rama Shankar. The said person started waiting for somebody and after about 10 minutes one middle aged person carrying a blue colour briefcase in his hand came from Tis Hazari Side and met the first person. The secret informer identified the second person as Guljaman who had come to supply Heroine. Both the persons identified as Rama Shankar and Guljaman started talking to each other. While talking, when they started walking towards the main gate of authority at about 10.45 am, SI Sunil Kumar apprehended them with the help of the b c d e f g h i j k l l i m n o g e p q"r f s t r&u q'p)v r+w o,s-p sWxYy x q'z {)z5|6{8} ~:p)5p v5>?v f s w x q 4 accompanying staff.
(d) SI Sunil Kumar introduced himself and the police party to those persons whose names were disclosed as Guljaman @ Gullu S/o Late Sh. Khair Jaman, and Rama Shankar S/o Sh. Saryu Prasad, the accused in this case.
SI Sunil Kumar informed the accused persons one by one about the secret information and thus the need for their search. They were informed that it was their legal right to get their search conducted in the presence of a Gazetted Officer or a Magistrate. They were also informed that they could search the police party before getting their search done. Both the accused were separately given written notice under section 50 of the NDPS Act one by one and contents of the notice were read over and explained to them. The accused accepted the notice and refused to avail the offer. They recorded their refusal in Hindi on their respective notices. Before conducting further proceedings SI Sunil Kumar requested 5 persons standing at the spot to join the proceedings but they expressed their genuine difficulty and left the spot without telling their names and addresses.
(e) SI Sunil Kumar firstly conducted the cursory search of accused Guljaman Khan. The blue colour bag in his possession was opened " & ') + ,- WY ' )568 :)5 5 >¡? 5 and checked. It was found containing 2 T-shirts, 2 pants and one heavy transparent polythene packet containing brown powder under the cloths. Mouth of the polythene packet, which was tied with the rubber band was opened and the powder contained therein was checked with the field testing kit. The powder tested as Heroine. The transparent polythene packet containing heroin was weighed on an electronic scale and the total weight was found to be 4.800 Kilograms. 2 samples of 5 grams each were taken from the recovered heroine and were kept in 2 small polythene pouches. They were kept in 2 paper envelopes and made into pulandas. The remaining heroine was kept as it is in the same briefcase and was converted into a pullanda with the help of the cloth. The sample pulandas were given mark A and B and the pulanda of the recovered Heroine was given mark C. Form FSL was filled at the spot. SI Sunil Kumar affixed his official seal of '6C PS NB DELHI' on all the 3 pulandas and form FSL. He handed over the seal after use to HC Harcharan Singh. The pulandas alongwith the form FSL were seized vide seizure memo.
(f) Thereafter SI Sunil Kumar conducted cursory search of accused Rama Shankar. No narcotic drug or any objectionable article was ¢ £ ¤ ¥ ¦ § ¨ © ª « ¬ ¬ © ® ¯ § ¥ ° ±"² ¦ ³ ´ ²&µ ±'°)¶ ²+· ¯,³-° ³W¸Y¹ ¸ ±'º »)º5¼6»8½ ¾:°)¿5° ¶5À>Á?¶ ¦ ³ · ¸ ± 6 recovered from his possession. Separate memo in this regard was prepared.
(g) SI Sunil Kumar prepared a tehrir and handed over to Ct. Kheta Ram and instructed him to go to the police station to get the FIR registered. SI Sunil Kumar also handed over the sealed pulandas of the case property and FSL form alongwith the carbon copy of the seizure memo to Ct. Kheta Ram with directions to handed over the same to SHO in compliance of section 55 of the NDPS Act.
(h) FIR was registered at the police station on the basis of the tehrir sent by SI Sunil Kumar. Pulandas were received by the SHO and he deposited them with MHC(M) vide DD No. 22.
Investigation of the case was assigned to SI Yashpal, who being the investigating officer reached at the spot and completed the proceedings. He arrested the accused persons and recorded the statements of the witnesses.
(i) On 23.09.2004 SI Sunil Kumar and SI Yashpal gave separate reports under section 57 of the NDPS Act which was forwarded by SHO to the senior officers. The sample was sent to FSL, Rohini and after completion of investigation, challan was filed for offences under Section 21 and 29 of the NDPS Act.
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3. Copies were supplied to both the accused persons. My Ld. Predecessor found that prima facie offence punishable under Section 29 of the NDPS Act was made out against both the accused persons and separately prima facie offence punishable under Section 21 of the Act was made out against the accused Guljaman. Both the accused were jointly charged for committing the offence punishable under Section 29 of the Act and a separate charge under Section 21 of the Act was framed against the accused Guljaman alone. Both the accused pleaded not guilty and claimed trial. Prosecution was then directed to lead evidence.
4. Prosecution has examined 10 witnesses in all.
PW-1 HC Ved Prakash was working in the office of DCP, Narcotics branch on 24.09.2004 when two reports under section 57 of the NDPS Act in case FIR No. 74/2004 were received and entries in this regard were made at serial No. 2048 & 2049 in the dak register. Witness produced the original reports and the dak register. Photocopies of the reports are placed on record as Ex. PW-1/A and Ex. PW-1/B. The reports bear the signatures of Sh. D. L. Kashyap, DCP Narcotics Branch.
PW-2 HC Vinod Kumar was posted at PS Narcotics Branch on 23.09.2004 and was working as duty officer. He testified that on the said date at about 2.15 pm Ct. Kheta ram handed over to him the rukka sent by SI Sunil Kumar on the basis of which he recorded the FIR vide â ã ä å æ ç è é ê ë ì ì é í î ï ç å ð ñ"ò æ ó ô ò&õ ñ'ð)ö ò+÷ ï,ó-ð óWøYù ø ñ'ú û)ú5ü6û8ý þ:ð)ÿ5ð ö ?ö æ ó ÷ ø ñ 8 Ex. PW-2/A and made endorsement on the rukka vide Ex. PW-2/B. He further testified that he made DD No. 21 when he started recording FIR and DD No. 23 about the closing of the FIR. He filed the copies of the same as Ex. PW-2/C and Ex. PW-2/F respectively. He also filed the copies of DD No. 1 as Ex. PW-2/D, copy of DD No. 22/A as Ex. PW-2/E, copy of DD No. 30 as Ex. PW-2/G and the copy of the DD No. 11 and 15 as Ex. PW-2/H and Ex. PW-2/I respectively. Witness testified that after recording of the FIR he handed over the rukka alongwith the copy of the FIR to SI Y.P Singh as further investigation was marked to him.
PW-5 HC Ct. Ashok Kumar has testified that on 01.10.2004 on the directions of SI Y. P. Singh and SHO, he received the exhibits alongwith form FSL sealed with the seals of '6C PS NB DELHI' and '1 SHO NBR DELHI' from MHC(M) vide RC No. 169/21 to deposit at FSL Rohini. Witness testified that he deposited the same at FSL Rohini and handed over the receipt of the same to MHC(M). He further testified that till the exhibits and form FSL remained in his custody, the seal was not tampered with.
PW-7 HC Jagat Singh was posted at PS Narcotic Branch as MHC(M) on 23.09.2004. He stated that on the said date at about 2.45 pm he "! #%$ & ' $)( #*!,+ $.- /&0! &2143 1 #*5 6,5 786:9 ;<!,= ! + > ?@+ & - 1 # 9 was called along with register No. 19 by SHO Inspector P. S. Hooda in his office. SHO handed over to him 3 sealed pulandas alongwith the form FSL and carbon copy of the seizure memo.
Witness stated that pulandas mark A and mark B were envelope pullandas and pulanda mark C was cloth pulanda. He further testified that 3 seals of '6C PS NB DELHI' and one seal of 'SHO NBR DELHI' were found affixed on the pulandas marked A and B each and one seal each of '6C PS NB DELHI' and 'SHO NBR DELHI' was found on the cloth pulanda and FSL form. He further testified that SHO wrote FIR no on all the pulandas and the documents in his presence. This witness made entry in this regard at serial No. 460 in the malkhana register and thereafter he put the articles in the malkhana. He produced the original register and placed on record the copy of the said entry vide Ex. PW-7/A. He further stated that SHO also recorded the DD No. 22 in this regard. Witness testified that on the same day at about 9.10 pm SI Y.P singh deposited the personal search articles of both the accused in the malkhana. Witness further testified that on 01.10.2004 pulanda mark A alongwith FSL form was sent to FSL, Rohini through Ct. Ashok Kumar vide RC No. 169/21 Ex. PW-7/D at about 10.20 pm. Copy of the entry A B C D E F G H I J K K H L M N F D"O P%Q E R S Q)T P*O,U Q.V N/R0O R2W4X W P*Y Z,Y [8Z:\ ]<O,^ O U _ `@U E R V W P 10 in this regard is has been placed as Ex. PW-7/B. The receipt of deposition was handed over to him by Ct. Ashok at about 4.30 pm. Witness further stated that on 17.12.2004 remnant sample alongwith the result was deposited in the malkhana by Ct. Jaivir. He handed over the result to the IO and made entry in this regard, copy of which is Ex. PW-7/C. PW-10 S. N Rasool, is the Junior Scientific Officer, CFSL, Hyderabad and has testified that on 10.09.2007 he received the sealed envelope with the seals intact and tallied with the specimen seals. The parcel was found containing 5.5767 grams of dark brown colour semi-solid material and one envelope in opened condition. The witness deposed that he started analysis on 22.10.2007 and conducted chemical tests such as colour test, thin layer chromatography and gas chromatograph-mass spactrometry methods. Based upon the above tests the witness detected Monoacetylmorphine in the substance Ex.-1 and gave report Ex. PW-10/A. He stated that remnants were packed in a cover and sealed with the seal of Chemistry, CFSL Hyderabad.
PW-10 Sh. S. N Rasool, is Junior Scientific Officer from CFSL Hyderabad, where sample of the contraband in pulanda mark B was sent for examination by the Court on the application of a b c d e f g h i j k k h l m n f d"o p%q e r s q)t p*o,u q.v n/r0o r2w4x w p*y z,y {8z:| }<o,~ o u @u e r v w p 11 the accused. The witness testified that on the basis of chemical tests such as colour test, thin layer chromatography and gas chromatograph-
mask spectrometric method, Monoacetylmorphine was detected in Ex. 1.
Witness has proved his report in this regard as Ex. PW-10/A. PW-6 Ct. Kheta Ram, PW-8 HC Harcharan Singh, PW-9 SI Sunil Kumar are the recovery witnesses and the members of the raiding party.
PW-4 Inspector P. S. Hooda was posted as SHO, PS Narcotic branch on the date of incident and PW-3 SI Yashpal Sing is the Investigating officer (IO).
5. All the incriminating material on record was put to the accused persons separately and their statements were recorded without oath under Section 313 Cr. P.C separately. Accused Guljaman denied the incriminating evidence against him and claimed that his signature and writing was obtained on notice under Section 50 of the NDPS Act by use of force. He claimed that nothing was recovered from his possession. He further claimed that on 22.09.2004 he had gone to Nizamuddin Dargah for prayer where a scuffle took place with certain persons who took him to the police station. Accused stated that he later on came to know that those persons were police men in plain cloths and thus he was falsely implicated in this case. Though accused Guljaman desired to lead evidence in defence, no defence witness was examined despite being given due opportunity. Accused Rama Shankar also denied the " % ) *, . /0 24 * , 8: <, @ 12 incriminating evidence against him and claimed that DD No. 10 about the secret information was fabricated. He claimed that his refusal on the notice under Section 50 of the NDPS Act was obtained subsequently under duress at the office and is ante timed. He claimed that his search was not conducted on the spot and that his signatures on the memo Ex. PW-6/D and various papers were taken under duress. He claimed to be falsely implicated as he had refused to supply marble at subsidized rates to the official of narcotic Branch from the shop where he was working. He stated that the official quarreled with him for this reason later on he was picked up and falsely implicated. Accused desired to lead evidence in defence and DW-1 Mangal Singh has been examined as defence witness by accused Rama Shankar.
6. I have heard Sh. Rajeev Mohan, Ld. Addl. PP for the State, Sh. Sanjeev Kumar, Ld. defence counsel for accused Guljaman and Mr. Anupam Sharma, Ld. defence counsel for accused Rama Shankar. I have carefully perused the record.
7. PW-9 SI Sunil Kumar has deposed that on 23.09.2004 he was posted at PS Narcotic Branch, Kamla Market when at about 9.00 am one secret informer came to the police station and informed him that one Guljaman, resident of Chittorgarh, Rajasthan has been bringing heroine from Rajasthan for supply in Delhi and that he would come between 10.30 am to 11.30 am near Rajpura Road transport authority near Bijli ghar to supply heroine to one Rama Shankar resident of Jahangir Puri. Witness stated that he satisfied himself about the information and produced the informer before the SHO Inspector P. S. Hooda and also informed him about the information. SHO satisfied himself and then informed ACP Mehar Singh on the ¡ ¢ £ ¤ ¥ ¦ § ¨ © ª « « ¨ ¬ ® ¦ ¤"¯ °%± ¥ ² ³ ±)´ °*¯,µ ±.¶ ®/²0¯ ²2·4¸ · °*¹ º,¹ »8º:¼ ½<¯,¾ ¯ µ ¿ À@µ ¥ ² ¶ · ° 13 telephone about the information and directed him (PW-9) to continue with the proceedings. Witness stated that he reduced the information into writing vide DD No. 10 at 9.15 am and handed over the copy of the same to SHO for information to senior officers. Witness further stated that raiding party was constituted comprising of himself, HC Harcharan Singh, HC Omkar, Ct. Kheta Ram, Ct. Ashok and the informer. At about 9.20-25 am they left the police station in the Government vehicle No. DL-1CF-5342 driven by Ct. Satbir, taking along IO bag, field testing kit and weighing machine. They reached at the spot at Rajpura Road Authority via ISBT, Tis Hazari. On the way at about 10.15 am they stopped at ISBT and requested 5 passengers to join the raiding party after apprising them of the situation, but none agreed. The driver of the Government vehicle was directed to park the vehicle in the Rajpura Road Authority. The raiding party took position around the area within 50 meters radius near the Bijli Ghar. Witness stated that he alongwith Ct. Harcharan singh and the secret informer stood near Bijli Ghar and other members of the raiding party were positioned outside the road. The raiding party was briefed at the spot. At about 10.37 am a person came from the side of main gate of the authority and stood at the corner of the authority opposite to Bijli Ghar. Witness stated that the said person was identified by the informer as accused Rama Shankar who had come to take heroine. Witness further stated that after about 10 minutes a middle aged person came from the side of the Tis Hazari, carrying a blue briefcase in his left hand. This person stopped near accused Rama Shankar and spoke to him. Informer pointed at this person and identified him as accused Guljaman. Informer left the spot after identifying the accused. Witness stated that both the Á Â Ã Ä Å Æ Ç È É Ê Ë Ë È Ì Í Î Æ Ä"Ï Ð%Ñ Å Ò Ó Ñ)Ô Ð*Ï,Õ Ñ.Ö Î/Ò0Ï Ò2×4Ø × Ð*Ù Ú,Ù Û8Ú:Ü Ý<Ï,Þ Ï Õ ß à@Õ Å Ò Ö × Ð 14 accused started walking towards the main gate of the authority and at that point of time they were stopped and apprehended by the police party at about 10.45 am. Identity of the police party was disclosed to the accused and they were informed about the secret information. Accused were told that their search was required and they were informed about their legal right to get their search conducted before a Gazetted Officer or a Magistrate. Accused were also offered to search the police party before their search. Witness stated that both the accused denied to avail the offer. Notice under Section 50 of the NDPS Act were given to them vide Ex. PW-6/A and Ex. PW-6/B and the contents were read over and explained. Accused recorded their refusal on the carbon copy of the notices vide Ex. PW-6/A1 and Ex. PW-6/B1. Witness stated that before starting the proceedings, he again requested 4-5 persons to join but none agreed and left the spot. Thereafter he conducted formal search of accused Guljaman and the blue colour briefcase carried by him in his left hand was checked. The briefcase was found containing cloths and a transparent polythene packet containing brown powder kept under the cloths. The powder was found to be heroine on testing with the field testing kit. The contraband was weighed alongwith the polythene and its total weight came to be 4.800 kg. Witness stated that from the recovered contraband 2 samples of 5 grams of each were taken and kept in 2 separate polythenes. They were tied with the rubber band and were kept in 2 separate yellow paper envelopes. The sample envelopes were given mark A and mark B. The remaining heroine was kept as it is in the same polythene tied with the same rubber band and kept in the same briefcase under the cloths and was converted into a cloth pulanda which was given mark C. FSL form á â ã ä å æ ç è é ê ë ë è ì í î æ ä"ï ð%ñ å ò ó ñ)ô ð*ï,õ ñ.ö î/ò0ï ò2÷4ø ÷ ð*ù ú,ù û8ú:ü ý<ï,þ ï õ ÿ @õ å ò ö ÷ ð 15 was filled at the spot. Witness stated that he sealed the pulandas mark A and mark B with 3 seals of "6C PS NB DELHI" on each. One seal was affixed on mark A (sic) and form FSL and seal after use was given to Ct. Harcharan Singh. Witness stated that case property was seized vide memo Ex. PW-6/C. Thereafter he conducted casual search of accused Rama Shankar but nothing was recovered from his possession. Memo in this regard was prepared Ex. PW-6//D. Witness stated and he prepared rukka Ex. PW-9/A and sent Ct. Khetaram to the police station alongwith the rukka, pulandas of the case property, FSL form on carbon copy of the seizure memo with directions to hand over the rukka to duty officer for registration of the case and to produce the case property, FSL form and copy of seizure memo before SHO under Section 55 of the NDPS Act. Witness further stated that at about 4.30 pm IO SI Yashpal Singh reached at the spot alongwith the Ct. Pushpinder. He produced both the accused and all the documents to the IO and briefed him about the situation. IO prepared the site plan Ex. PW-3/A at his pointing out. IO made formal enquiries from the accused persons and thereafter arrested them vide memo Ex. PW-3/D and Ex. PW-3/E. Their personal search was conducted vide Ex. PW-3/B and Ex. PW-3/C. Witness stated that disclosure statements of both the accused were recorded by IO vide Ex. PW-3/G and Ex. PW-3/F. After completion of the investigation at about 8.00 pm they left the spot and reached at the police station at about 9.00 pm. Both the accused were produced before SHO by SI Yashpal Singh and articles recovered from the personal search were deposited by IO. Witness stated that he prepared a report under Section 57 of the NDPS Act vide Ex. PW-4/A. He identified the case property produced during the trial. A gray/dark blue briefcase has !#" $ % "'& !( *) ",+ -$. $0/21 / !(3 4*3657498 :; *<6 )6= >?) $ + / ! 16 been identified as Ex. P-1, cloths collectively as Ex. P-2, polythene as Ex. P-3 and contraband as Ex. P-4. He also identified the remnant of the contraband in envelope mark A as Ex. P-5 and remnant of sample contraband in envelope mark B as Ex. P-8.
8. PW-6 Ct. Kheta Ram and PW-8 HC Harcharan Singh have deposed on the lines of the PW-9 SI Sunil Kumar on the facts of their joining the raiding party constituted by SI Sunil Kumar, briefing of the raiding party by SI Sunil Kumar (PW-9) about the secret information, departure of the raiding party in the official vehicle from the police station, reaching of the raiding party at the spot near Rajpura Road authority, request to the public person to join the proceedings on the way, taking position by the members of the raiding party at the spot, arrival of the accused persons at the spot one after the other, identification of the accused by the secret informer, apprehension of the accused by the raiding party, informing the accused about the secret information and their legal right to get their search conducted in the presence of a Gazetted Officer or a Magistrate, offer to the accused to search the police party, written notice given to the accused under Section 50 of the NDPS Act, refusal of the accused to avail the offer, search of the accused Guljaman, recovery of a transparent polythene packet containing 4.800 Kilograms heroine from the briefcase in possession of accused Guljaman, weighing of the contraband, taking of samples, making of pulandas, sealing of the case property, filing up of FSL form, seizure of the case property and preparation of rukka by SI Sunil Kumar (PW-9). Both the witnesses have also deposed on the lines of PW-9 SI Sunil Kumar about the handing over of the seal by SI Sunil Kumar after use to PW-8 Ct. Harcharan Singh, taking of rukka and case @ A B C D E F G H I J J G K L M E C N O#P D Q R P'S O(N*T P,U M-Q.N Q0V2W V O(X Y*X6Z7Y9[ \;N*]6N T6^ _?T D Q U V O 17 property to the police station by PW-6 Ct. Khetaram. PW-8 HC Harcharan Singh has deposed on the lines of the PW-9 SI Sunil Kumar about arrival of SI Yashpal singh (IO) at the spot after registration of FIR and proceedings being conducted by him including preparation of site plan, arrest of the accused and their personal search. Both these witnesses i.e PW-6 Ct. Khetaram and PW-8 HC Harcharan singh identified the case property produced in the Court during trial i.e gray/dark blue briefcase as Ex. P-1, cloths collectively as Ex. P-2, polythene as Ex. P-3 and contraband as Ex. P-4.
9. PW-6 Ct. Khetaram in addition to his deposition on the lines of PW-9 SI Sunil Kumar as mentioned above, has testified that he left the spot in the official vehicle at about 1.45 pm taking alongwith him the rukka, 3 pulandas of the case property, form FSL and the carbon copy of the seizure memo. Witness further stated that SHO mentioned the FIR Number on the pulandas and the copy of the seizure memo and thereafter affixed his seal of "1SHO NBR DELHI"
on all the 3 pulandas and form FSL. Witness further stated that SHO directed the duty officer to mark further investigation to SI Yashpal Singh. Witness stated that while SI Yashpal Singh left the spot in the Government vehicle he himself remained at the police station. He further stated that in his presence SHO called MHC(M) alongwith the register No. 19 and handed over to him the case property. Witness further stated that MHC(M) made entries in this regard in Register No. 19 which was signed by SHO.
10. PW-4 Inspector P. S. Hooda was posted as SHO PS Narcotic Branch, Kamla Market on 23.09.2004. He has testified that on the said date at about 9.00 pm (sic) SI Sunil Kumar produced one ` a b c d e f g h i j j g k l m e c n o#p d q r p's o(n*t p,u m-q.n q0v2w v o(x y*x6z7y9{ |;n*}6n t6~ ?t d q u v o 18 informer before him and told him about the information that one Guljaman, R/o Chittorgarh, Rajasthan, and involved in supply of heroine in Delhi would reach near Rajpura Road authority in between 10.30 am-11.30 am to deliver heroine to one Rama Shankar. He confirmed this fact from the informer and then informed the ACP on the telephone. Witness stated that he directed SI Sunil Kumar (PW-9) to conduct the raid and that at about 9.15 am. SI Sunil Kumar reduced the information into writing vide DD No. 10 and placed before him, which he forwarded to the senior officer through dak. Witness has deposed on the lines of the PW-9 SI Sunil Kumar that on his directions he (PW-9) constituted the raiding party which left the police station in the government vehicle vide DD No. 11. Witness further stated that at about 2.20 pm Ct. Khetaram (PW-6) came to his office and produced the carbon copy of the seizure memo, one FSL Form, 2 envelope parcels mark A and mark B and one cloth parcel mark C. witness stated that parcels A and B were sealed with 3 impressions of the seal "6C PS NB DELHI" and one seal impression of the said seal was on the cloth parcel mark C and form FSL. Witness stated that he mentioned the FIR No. 74 on the FSL form and the parcels and also affixed his official seal of "1SHO NBR DELHI" on the FSL form and the 3 parcels. He further stated that he called the MHC(M) HC Jagat Kumar (PW-7) alongwith the register No. 19 and directed him to make entry in the register regarding deposition of the case property with him (PW-7). Witness further stated that he made DD No. 22 in this regard vide Ex. PW-2/E. Further investigation was entrusted to SI Yashpal singh, who after completing investigation produced the accused in his office at 9.00 pm. Witness stated that he made enquiries from the accused persons # ' (* , -. 02 ( *679 ;*6 6 ? 19 and thereafter they were put in the lock-up. He forwarded the reports under Section 57 of the NDPS Act prepared by SI Sunil Kumar (PW-
9) and SI Yashpal Singh (PW-3) to ACP Mehar Singh vide Ex. PW- 4/A and Ex. PW-3/H. Witness further stated that on 01.10.2004 exhibits mark A alongwith form FSL was sent to FSL, Rohini through Ct. Ashok (PW-5) for examination.
11. PW-3 SI Yashpal Singh was posted at PS Narcotic Branch, Kamla Market on 23.09.2004. He has testified that on the said date investigation was entrusted to him after registration of the case. The tehrir and the copy of the FIR was handed over to him at about 3.45 pm, on receipt of which he went to Rajpura Road authority alongwith Ct. Pushpinder near Electric Transformer (Bijli Ghar). He has deposed on the lines of PW-9 SI Sunil Kumar about the presence of SI Sunil Kumar and the staff at the spot alongwith the accused, enquiry by him from SI Sunil Kumar, handing over of the documents and charge of accused by SI Sunil Kumar (PW-9) to him, preparation of site plan vide Ex. PW-3/A on the pointing out of SI Sunil Kumar, arrest of the accused and their personal search vide memo Ex. PW-3/B to Ex. PW-3/E and disclosure statements of the accused vide Ex. PW-3/F and Ex. PW-3/G. Witness further stated that he deposited the seizure memo and personal search memo of the accused with MHC(M). He recorded the statements of the witnesses and sent the report under Section 57 of the NDPS Act to ACP Narcotic Branch through SHO vide Ex. PW-3/H. Witness stated that on 01.10.2004 exhibits were sent to FSL, Rohini through Ct. Ashok (PW-5) and report from the FSL was collected and filed vide Ex. PW-3/X.
12. The contentions raised in defence of the accused ¡ ¢ £ ¤ ¥ ¦ § ¨ © ª ª § « ¬ ¥ £ ® ¯#° ¤ ± ² °'³ ¯(®*´ °,µ -±.® ±0¶2· ¶ ¯(¸ ¹*¸6º7¹9» ¼;®*½6® ´6¾ ¿?´ ¤ ± µ ¶ ¯ 20 Guljaman against the charge under Section 21 of the NDPS Act are basically two-fold :
(1) Seal on the pulanda of the case property produced during the trial was broken and thus benefit of doubt must go to the accused as it was not preserved properly and possibility of tempering cannot be ruled out.
(2) There are three analysis reports of the contraband allegedly recovered from the accused, which are much in variance about the percentage of Diacetylmorpohine, the substance in question and thus nature of the alleged substance is not established.
13. On the basis of above contentions, it is submitted that prosecution has failed to prove its case beyond reasonable doubts and the benefit of which must go to the accused Guljaman.
14. The contentions raised in defence of both the accused against the Charge under Section 29 of the NDPS Act are that there is no evidence to connect them with the offence alleged. It is contended that the secret information cannot be used against the accused as the secret informer has not been produced as a witness by the prosecution during the trial and confession of the accused is inadmissible in evidence. Ld. Defence counsel has relied on the Apex Court's decision in "Abdul Rashid V/s State of Bihar 2001 (1) JCC (SC) 273" to support these contentions.
15. In rebuttal to contentions raised in defence of accused Guljaman with respect to offence under Section 21 of the NDPS Act, it is submitted by Ld. Addl. PP for the State that merely because À Á Â Ã Ä Å Æ Ç È É Ê Ê Ç Ë Ì Í Å Ã Î Ï#Ð Ä Ñ Ò Ð'Ó Ï(Î*Ô Ð,Õ Í-Ñ.Î Ñ0Ö2× Ö Ï(Ø Ù*Ø6Ú7Ù9Û Ü;Î*Ý6Î Ô6Þ ß?Ô Ä Ñ Õ Ö Ï 21 seals on the case property were found to be broken when it was produced in the Court, the entire case of the prosecution cannot be thrown out because the material facts of recovery, seizure and sealing of the case property have been proved by the witnesses to those proceedings and by the documents prepared in that respect in the course of investigation. It is submitted that the seal impressions are made of a brittle substance which is prone to break and come of by normal handling in the storage and thus the entire prosecution case which otherwise stands proved by the testimony of witnesses, cannot be ignored. It is submitted that since no prejudice has been pleaded to have been caused to the accused on this account, the mere fact that the seals were broken would not lead to the conclusion that the case property was tempered with until and unless it is established so. It is further submitted that the reanalysis report Ex. CW-1/A of the sample drawn from the contraband during trial under the supervision of the Court proves that the nature of substance remains the same as it is proposed to be by the prosecution and that since nothing new or alien has come in the reanalysis report, no benefit can be given to the accused on account of the broken seals.
16. With respect to variation in the percentage of Diacetylmorpohine in the three reports, it is submitted that the same is because of the highly reactive nature of this substance with air and moisture in ordinary conditions and thus in the absence of any evidence to show that the substance produced in the Court was altogether a different substance than what it is proposed by the prosecution, no benefit can go to the accused.
17. In rebuttal to the contentions raised in defence of the accused persons with respect to offence under Section 29 of NDPS à á â ã ä å æ ç è é ê ê ç ë ì í å ã î ï#ð ä ñ ò ð'ó ï(î*ô ð,õ í-ñ.î ñ0ö2÷ ö ï(ø ù*ø6ú7ù9û ü;î*ý6î ô6þ ÿ?ô ä ñ õ ö ï 22 Act, it is submitted by Ld. Addl. PP for the State that police had a prior specific information about identification, role and involvement of both the accused in the offence, which was duly recorded vide DD No. 10 by PW-9 SI Sunil Kumar. It is submitted that the accused were apprehended at the place and in the circumstances exactly as was disclosed in the secret information. Presence of both the accused at one place, they being seen talking to each other and moving from the spot together, as deposed by the members of the raiding party i.e. PW-6 Ct. Kheta Ram, PW-8 HC Harcharan Singh and PW-9 SI Sunil Kumar proves their involvement. It is thus submitted that there is sufficient evidence and material on record against them to establish their guilt for committing the offence under Section 29 of the NDPS Act.
18. I have carefully considered the rival submissions put-forth in the light of material on record.
19. Before analyzing the evidence on record against accused Guljaman, in the light of counter-submissions made by the defence and the Addl. PP, it is necessary to take note of the proceedings and the circumstances under which reanalysis of the contraband was got done twice during the trial, by the court's order.
20. Accused Guljaman has been charged for committing the offence punishable under Sections 21 and 29 of the NDPS Act by my Ld. Predecessor on the allegations that on 23.09.2004 at about 10.45 am at Rajpur Road Authority near Electricity Office he was found in possession of 4.800 Kilograms of Heroin, which he was carrying in a blue colour briefcase. As per the prosecution case two samples of 5 Grams each were drawn from the polythene packet containing Heroin, which was recovered from the briefcase in ! " # %$ & (' *) +", ".-0/ - &1 2(1435276 89 (:4 '4;=<>' " )
-
23possession of accused Guljaman. The samples were sealed and given Mark-A & B. The remnant contraband was kept as it is in the polythene packet inside the briefcase and converted into pulanda, which was Marked-C. During investigation, sample pulanda Marked- A was sent to FSL and as per FSL Report dated 30.11.2004, Ex. PW-3/X, the substance in the sample pulanda tested positive for the presence of Diacetylmorpohine and on Gas Chromatography Examination its percentage was found to be 16.66 %.
21. Accused Guljaman pleaded not guilty to the charges and thus prosecution was directed to lead evidence. While the prosecution evidence was in progress, on 31.10.2006 during the cross-examination of PW-8 HC Harcharan Singh, the sample pulanda Marked-B was directed to be opened by my Ld. Predecessor on the request of the defence counsel and the contents were shown to the witness. On seeing the contents of the sample in pulanda Marked-B, the witness admitted that there was lot of difference in colour of the substance taken out from the pulanda Marked-B and the contraband produced in the Court as Ex. P-4. It was also observed by my Ld. Predecessor that the pouch of sample parcel Mark-B had some holes in it.
22. It is not disputed that the case property in pulanda Marked-C was opened for the first time in the Court during examination of PW-6 Ct. Kheta Ram on 17.07.2006 when the Court observed that cloth pulanda was bearing broken seals and only "6C" was visible on one the seals. In these circumstances accused Guljaman moved an application for drawing the sample from the case property and to send it to FSL for reanalysis. This application was allowed vide order dated 04.12.2006. Pursuant to this order, a ? @ A B C D E F G H I I F J K L D B M N!O C P Q O%R N&M(S O*T L+P,M P.U0V U N&W X(W4Y5X7Z [9M(\4M S4]=^>S C P T U N 24 sample(JS-1) was drawn from Ex. P-4 (the contraband kept in the polythene packet in the briefcase) in the Court on 20.01.2007, it was sealed with the Court Seal and sent to FSL Rohini for retesting. The examination report of this sample is Ex. CW-1/A dated 06.03.2007, according to which, the sample substance was found to contain Monoacetylmorphine, Acetylcodeine & Diacetylmorpohine and the percentage of Diacetylmorpohine in the sample substance was 1.2 %.
23. In view of variation in the percentage of Diacetylmorpohine in the two reports, i.e. Ex. PW-3/X and Ex. CW-1/A, Ld. Predecessor vide order dated 16.03.2007 directed to summon Dr. Madhulika Sharma, Assistant Director, Chemistry, FSL, Delhi, author of both the reports, for proper appreciation. Dr. Madhulika Sharma was examined in the Court on 10.04.2007 as CW-1 and she proved her report dated 06.03.2007 as Ex. CW-1/A. The witness CW-1 Dr. Madhulika Sharma explained the reasons for variation and difference in the composition of the two samples in the two reports, which would be analyzed and considered at a later stage.
24. However, in view of the variation in percentage of Diacetylmorpohine in the two reports, a plea was taken on behalf of the accused that the samples, which are claimed by the prosecution to have been taken from the Heroin, allegedly recovered from the possession of the accused, were not taken from the source as claimed by the prosecution. Thus another application was moved on behalf of the accused Guljaman for sending the second sample Mark-B to CFSL, Chandigarh for testing, which was allegedly drawn from the Heroin recovered from the possession of the accused at the _ ` a b c d e f g h i i f j k l d b m n!o c p q o%r n&m(s o*t l+p,m p.u0v u n&w x(w4y5x7z {9m(|4m s4}=~>s c p t u n 25 time of arrest. This application was allowed by my Ld. Predecessor vide order dated 31.07.2007 and the sample Mark-B was sent to CFSL, Chandigarh. However, the sample was returned by CFSL, Chandigarh as it did not have the necessary facilities to test the sample. So, this sample was sent to CFSL, Hyderabad for testing vide order dated 30.08.2007. Ex. PW-10/A is the result of the examination of Sh. S. N. Rasool, Junior Scientific Officer, CFSL, Hyderabad, according to which the exhibit sent for testing gave positive test for the presence of Monoacetylmorphine.
25. The first contention raised by Ld. Defence counsel is that the seals on the pulanda of the case property Marked-C were found to be broken during its production in the Court, which indicate tempering and create serious doubt about the substance in question. Ld. Defence counsel has submitted that in the above facts and circumstances, possibility of tempering of the case property cannot be ruled out and thus accused deserves to be acquitted of the charges, in view of the decision of Hon'ble High Court of Delhi in "Mobin Fathu Bhai Mulani V/s N. C. B. 2001 (1) JCC (Delhi) 337".
26. As per the prosecution case and as deposed by the recovery witnesses PW-6 Ct. Kheta Ram, PW-8 HC Harcharan Singh and PW-9 SI Sunil Kumar after recovery of 4.800 Kilograms of Heroin from the possession of accused Guljaman, which he was carrying in a briefcase, the same was seized and two samples of 5 Grams each were drawn from the recovered Heroin. The samples were put in separate paper pulandas and were given Mark-A & B. The recovered contraband was kept as it is in the briefcase and made into a separate pulanda with Mark-C. All the three pulandas i.e. two sample pulandas and one pulanda of seized Heroin were sealed by PW-9 ! % &( * +, .0 & (457 9(4 4=> 26 SI Sunil Kumar with his official seal of "6C PS NB DELHI". As per the prosecution case and as deposed by the witnesses, all the sealed pulandas were delivered to PW-4 Inspector P. S. Hooda through PW-6 Ct. Kheta Ram. It has come in the testimony of PW-6 Ct. Kheta Ram and PW-4 Inspector P. S. Hooda that after receiving the pulandas, PW-4 Inspector P. S. Hooda affixed his seal of "1 SHO NBR DELHI" on all of them and thereafter deposited them with MHC(M). PW-7 HC Jagat Kumar was the MHC(M) at the relevant time. He testified that three pulandas Marked-A, B and C bearing the seals of "6C PS NB DELHI" and "1 SHO NBR DELHI" were handed over to him by the SHO (PW-4), which he deposited in the Malkhana and made relevant entry in this regard. Ex. PW-7/A is the record of Register No. 19 pertaining to the said entry, which shows that two envelope pulandas Marked-A & B and one third pulanda Marked-C, each bearing the seals of "6C PS NB DELHI" and "1 SHO NBR DELHI" were deposited in the Malkhana. Nothing has come in the cross-examination of any of these witnesses to discredit their testimony about the facts stated by them on the above aspects. Further, PW-5 Ct. Ashok Kumar had taken a sample pulanda from the MHC(M) on 01.10.2004 for depositing at FSL, Rohini. It has come in his deposition that the pulanda was sealed with the seals of "6C PS NB DELHI" and "1 SHO NBR DELHI". Ex. PW-3/X is the report of FSL Delhi dated 30.11.2004, which mentions that the pulanda Marked-A was sealed with the seal of "PS NB 6C DELHI" and "SHO NBR 1 DELHI" and further that the seals on the pulanda tallied with the specimen seal impressions forwarded alongwith forwarding letter i.e. FSL form. This report mentions that on chemical examination of the sample, it gave positive tests for the presence of ¡ ¢ £ ¤ ¥ ¦ § ¨ © © ¦ ª « ¬ ¤ ¢ ®!¯ £ ° ± ¯%² ®&(³ ¯*´ ¬+°, °.µ0¶ µ ®&· ¸(·4¹5¸7º »9(¼4 ³4½=¾>³ £ ° ´ µ ® 27 Diacetylmorpohine. It is necessary to mention here that under the NDPS Act, Diacetylmorpohine is the chemical name of Heroin, an Opium derivative, which falls in the category of manufactured drug.
27. Ex. CW-1/A is the analysis report of the sample drawn in the Court from the case property produced in the Court during trial in pulanda Marked-C and exhibited in the Court as Ex. P-4. As per this report, the sample has been found to contain Monoacetylmorphine and Acetylcodeine in addition to Diacetylmorpohine. CW-1 Dr. Madhulika Sharma, Assistant Director (Chemistry), FSL, Madhuban Chowk, Rohini, Delhi who is the executor of both the reports (Ex. PW-3/X and Ex. CW-1/A) has deposed that due to passage of time physical and chemical changes take place in Heroin/Smack (Diacetylmorpohine). She has stated that Diacetylmorpohine is a synthesized product of Morphine and due to passage of time it converts back into Monoacetylmorphine and Morphine, so the percentage of Diacetylmorpohine in the contraband is reduced with the passage of time. She further stated that other physical changes as mentioned in the later report Ex. CW-1/A can also take place due to passage of time. It is pertinent to mention here that specific Court question was put to this witness as to whether it is possible for the percentage of Diacetylmorpohine to reduce from 16.66 % to 1.2 % over period of time. In reply to this question the witness stated that the same is very much possible. In the cross-examination, the witness also stated that percentage of Monoacetylmorphine & Acetylcodeine have not been specifically mentioned as standards of these compounds are not available world wide. The witness stated that both these products are covered under the NDPS Act. However, in reply to a specific question put to this ¿ À Á Â Ã Ä Å Æ Ç È É É Æ Ê Ë Ì Ä Â Í Î!Ï Ã Ð Ñ Ï%Ò Î&Í(Ó Ï*Ô Ì+Ð,Í Ð.Õ0Ö Õ Î&× Ø(×4Ù5Ø7Ú Û9Í(Ü4Í Ó4Ý=Þ>Ó Ã Ð Ô Õ Î 28 witness in the cross-examination by the defence counsel she stated that though she can not specifically say whether the two samples examined vide reports Ex. PW-3/X (1st Report dated 30.11.2004) and Ex. CW-1/A (2nd Report dated 06.03.2007) were from the same contraband, but the possibility of their being from the same contraband cannot be ruled out. The expert witness denied the suggestion given to her by the defence counsel that the percentage of Diacetylmorpohine cannot get reduced from 16.66 % to 1.2 % over a period of time.
28. It is not in dispute that Diacetylmorpohine is a synthesized product of Morphine and it is highly reactive in ordinary conditions. As per the testimony of expert witness CW-1 Dr. Madhulika Sharma due to the highly reactive nature of Diacetylmorpohine, it converts into Monoacetylmorphine and Morphine. Nothing contrary to this opinion is brought on record by the defence. Similarly, testimony of CW-1 Dr. Madhulika Sharma could not be controverted by Ld. Defence counsel on the aspect that the physical changes do take place in Diacetylmorpohine due to passage of time.
29. A Constitution Bench of the Apex Court in "Karnail Singh V/s State of Haryana, (2009) 8 Supreme Court Cases 539"
taking note of the objects, reasons and scheme of the NDPS Act held that non-compliance of the statutory procedural requirements under the NDPS Act shall not vitiate the trial if it does not cause any prejudice to the accused. Keeping in view the principle laid down by the Hon'ble Supreme Court of India in the above case for the purposes of analysis of evidence on record, the material and the evidence on record shows that despite the fact that the seal of the pulanda Mark-C containing the contraband, though when produced in ß à á â ã ä å æ ç è é é æ ê ë ì ä â í î!ï ã ð ñ ï%ò î&í(ó ï*ô ì+ð,í ð.õ0ö õ î&÷ ø(÷4ù5ø7ú û9í(ü4í ó4ý=þ>ó ã ð ô õ î 29 the Court during trial was broken, it has been proved to contain the same substance i.e. Heroin, which it is proposed to contain. Further, there is nothing on record to indicate or suggest that the pulanda containing the contraband was either open or torn so as to create possibility of tempering. Neither any such line of defence has come in the cross-examination of any of the witnesses. Rather, possibility of tempering of the case property has been ruled out by the reanalysis report of the contraband though a fresh sample(JS-1) drawn from it in the Court. The reanalysis report Ex. CW-1/A specifically mentions that the sample substance(JS-1) was found to contain Diacetylmorpohine, Monoacetylmorphine and Acetylcodeine, all derivatives of Opium. In these circumstances when the nature of substance in the pulanda of the case property (Mark-C) has remained the same i.e. Heroin, an Opium derivative, it shows that the case property has not been tempered with and has remained intact despite the fact that the seal on the pulanda was broken. Thus no prejudice can be believed to have been caused to the accused on the basis of the broken seal.
30. Further, Facts of this case are different from the facts of the "Mobin Fathu Bhai Mulani's case referred by the defence counsel. Hon'ble High Court of Delhi acquitted the accused in the above case by giving benefit of doubt on the ground that case property was not preserved properly and so possibility of tempering cannot be ruled out. But in the present case tempering of the case property has been ruled out and so no benefit can go to the accused on account of broken seal. There is every likelihood that the seals of pulanda(Mark-C) broke or came off in routine handling and storage.
ÿ ! " $# % '& )( *!+ !-,/. , %0 1'0324165 78 '93 &3:<;=& ! ( , 30
31. Coming to the second contention raised by the defence counsel about variation in percentage of Diacetylmorpohine in the three reports on record, it is submitted that tremendous variation reported in the three reports is not possible over the passage of time and it creates reasonable doubt that the recovery was not made in the manner alleged. Ld. Defence counsel has referred to the decision of Hon'ble Delhi High Court in "Rahul Saini V/s The State, 2006 (3) JCC (Narcotics) 134" in support of his contention.
32. The first report is Ex. PW-3/X dated 30.11.2004 which shows percentage of Diacetylmorpohine as 16.66%. The second report is Ex. CW-1/A dated 06.03.2007 which shows percentage of Diacetylmorpohine as 1.2%. The third report is Ex. PW-10/A dated 16.11.2007 which is silent about presence of Diacetylmorpohine and shows presence of Monoacetylmorphine in the substance examined.
33. CW-1 Dr. Madhulika Sharma is the author of first two reports i.e. Ex. PW-3/X and Ex. CW-1/A. She has testified that due to passage of time besides the physical and chemical changes that take place in the Heroin/Smack (Diacetylmorpohine), the Diacetylmorpohine, being a synthesized product of Morphine, converts back to Monoacetylmorphine and Morphine. It has come in her testimony that percentage of Diacetylmorpohine can reduce from 16.66% to 1.2% over a period of time.
34. PW-10 Sh. S. N. Rassol, Junior Scientific Officer, CFSL, Hyderabad, is the author of third report Ex. PW-10/A. He has testified that on the basis of colour test, thin layer chromatography and gas chromatograph-mass spactyrometry methods, presence of Monoacetylmorphine was detected in the sample material. In the cross-examination the expert witness stated that as per literature, > ? @ A B C D E F G H H E I J K C A L M N B O P N$Q M%L'R N)S K*O+L O-T/U T M%V W'V3X4W6Y Z8L'[3L R3\<]=R B O S T M 31 over a period of time, Diacetylmorpohine converts in the Monoacetylmorphine and Monoacetylmorphine converts into Morphine. He further stated in the cross-examination that depending on the environment conditions, the Diacetylmorpohine can convert into Monoacetylmorphine totally in a year or two. He denied the specific suggestion that only 0.1 or 0.2 % of Diacetylmorpohine can convert into Monoacetylmorphine and that too over a period of 10 years. It has further come in the cross-examination of this witness that he has seen in the Lab that even the standard sample of Heroin converts into Monoacetylmorphine and Morphine totally. Witness denied the suggestion that the standards sample of Diacetylmorpohine never convert into Monoacetylmorphine.
35. The crux of the testimony of two expert witnesses on record i.e. CW-1 Dr. Madhulika Sharma and PW-10 Sh. S. N. Rasool is that Diacetylmorpohine is covered in the ambit of organic chemistry. It is a synthesized product of Morphine. As per the subject literature, over a period of time Diacetylmorpohine converts into Monoacetylmorphine and Monoacetylmorphine converts into Morphine. Further, depending upon the environment conditions, Diacetylmorpohine can convert into Monoacetylmorphine totally in a year or two. This change does not require a long time to take place.
36. The sample Marked-A was drawn at the spot at the time of recovery on 23.09.2004 and was examined after 02 months vide report Ex. PW-3/X dated 30.11.2004. Ex. CW-1/A is the reanalysis report of the sample drawn from the case property produced in the Court on 20.01.2007 i.e. after 02 years and 04 months of the recovery. Ex. PW-10/A is the examination report of the sample Mark-B, which was drawn at the spot at the time of the recovery on ^ _ ` a b c d e f g h h e i j k c a l m n b o p n$q m%l'r n)s k*o+l o-t/u t m%v w'v3x4w6y z8l'{3l r3|<}=r b o s t m 32 23.09.2004. The report is dated 16.11.2007, which means sample was examined after 03 years and 02 months approximately.
37. As per analysis report Ex. CW-1/A, the percentage of Diacetylmorpohine has reduced in the sample drawn in the Court (JS-1). From the expert evidence it is proved that this reduction is the general behaviour of this substance. While the first report Ex. PW-3/X does not speak about presence of Monoacetylmorphine, the second report Ex. CW-1/A clearly mentions the presence of Monoacetylmorphine, which is the end of product of Diacetylmorpohine after reaction with the passage of time. The sample pulanda Marked-B was tested vide report Ex. PW-10/A dated 16.11.2007 i.e. after 03 years and 02 months of the recovery and it gave positive test of Monoacetylmorphine indicating total conversion of Diacetylmorpohine into Monoacetylmorphine with the passage of time as explained by the expert witnesses.
38. Thus, the variation in the percentage of Diacetylmorpohine in the three reports has been duly explained by the expert witnesses, which is not controverted by the defence by leading any evidence or by showing any literature. Though, during the course of arguments Ld. Defence counsel filed certified copies of the statement of Dr. Madhulika Sharma in another case FIR No.32/2007, under Section 21/29 NDPS Act, PS Narcotics Branch on a similar aspect to discredit her testimony, but the said statement could be used to discredit the witness only if CW-1 Dr. Madhulika Sharma was confronted with that statement during her testimony in this case.
39. In Rahul Saini's case referred by the Ld. Defence counsel, Hon'ble High Court of Delhi granted bail to the accused on ~ $ %' ) *+ -/ % '346 8'3 3<= 33 the ground that variation in the percentage of Diacetylmorpohine was not explained. However in the present case, the tremendous variation in the percentage of Diacetylmorpohine has been duly explained by the two expert witnesses and nothing has been brought on record by the defence contrary to their depositions. Thus, since facts and circumstances of this case are distinguishable from the facts and circumstances of the judgment referred, no benefit can be given to the accused on account of tremendous variation in the percentage of Diacetylmorpohine in the three reports. To sum up Diacetylmorpohine being a synthesized product of Morphine converts into Monoacetylmorphine and Morphine totally with the passage of time dependent upon the storage conditions.
40. The evidence on record shows that PW-9 SI Sunil Kumar had a specific information about involvement of accused Guljaman and his movement and presence on the particular day, time and place with Heroin. He passed over this information to his Senior Officer PW-4 Inspector P. S. Hooda, who was the SHO of the PS and also produced the informer before him. PW-4 Inspector P. S. Hooda satisfied himself about the information and then passed over this information on the telephone to the concerned ACP. PW-4 Inspector P. S. Hooda and PW-9 SI Sunil Kumar have testified that the information was reduced into writing and on the directions of PW-4 Inspector P. S. Hooda, PW-9 SI Sunil Kumar prepared a raiding party including himself, PW-6 Ct. Kheta Ram and PW-8 HC Harcharan Singh. All the three members of this raiding party have deposed that they reached at the spot and took positions. They have testified that accused Guljaman was apprehended on the identification of the secret informer and on search of the briefcase ¡ ¢ £ ¤ ¥ ¦ § ¨ ¨ ¥ © ª « £ ¡ ¬ ® ¢ ¯ ° ®$± %¬'² ®)³ «*¯+¬ ¯-´/µ ´ %¶ ·'¶3¸4·6¹ º8¬'»3¬ ²3¼<½=² ¢ ¯ ³ ´ 34 carried by the accused, a polythene packet containing 4.800 Kilograms of Heroin was recovered. The witnesses have deposed and corroborated each other about the proceedings conducted at the spot about search, recovery, seizure and sealing etc. of the contraband. Nothing has come in their cross-examination to discredit their testimony or to create any doubt about their deposition. Documents prepared during the proceedings have been duly proved. The quantity of Heroin recovered from the possession of the accused is so large that the question of implicating him does not arise and no other explanation has been offered on behalf of the accused about the possession of the contraband. (Reference to Apex Court's decision in "State of Punjab V/s Balwant Rai (2005) 3 Supreme Court Cases 164" and "G. Sriniwas Goud V/s State of AP (2005) 8 Supreme Court Cases 183".
41. With respect to charge under Section 29 of the NDPS Act against the two accused, as per the prosecution case, their names figured in the secret information received by PW-9 SI Sunil Kumar, which was duly recorded by him vide DD No. 10. The other material against the accused persons is their confession besides the statements of members of the raiding party i.e. PW-6 Ct. Kheta Ram, PW-8 HC Harcharan Singh and PW-9 SI Sunil Kumar, who have deposed that on 23.09.2004 at about 10.37 am while they were positioned near Bijli Ghar, accused Rama Shanker came from the side of main gate of Rajpur Road Authority and stood at the corner opposite Bijli Ghar when he was identified by the informer by name. The witnesses have deposed that after about 10 minutes a middle aged man identified as accused Guljaman came from the side of Tis Hazari Courts carrying a blue colour briefcase in his left hand and ¾ ¿ À Á Â Ã Ä Å Æ Ç È È Å É Ê Ë Ã Á Ì Í Î Â Ï Ð Î$Ñ Í%Ì'Ò Î)Ó Ë*Ï+Ì Ï-Ô/Õ Ô Í%Ö ×'Ö3Ø4×6Ù Ú8Ì'Û3Ì Ò3Ü<Ý=Ò Â Ï Ó Ô Í 35 stopped near the accused Rama Shanker. Both had a talk and as soon as they started walking towards the main gate of Rajpur Road Authority, they were apprehended by the police party. The witnesses have deposed that both the accused disclosed their identity and made confession about their involvement in the incident.
42. Main evidence against the accused about the charge for committing the offence under Section 29 of the NDPS Act is a secret information besides the statements of the police witnesses about presence together at the spot and their confession. Now the issue is whether the above material is sufficient to hold the accused guilty for committing the offence punishable under Section 29 of the NDPS Act. Hon'ble High Court of Delhi in "Karan Singh V/s The State (NCT of Delhi) 2006 (2) JCC (Narcotics) 83" and "Abdul Rashid V/s State of Bihar 2001 (1) JCC (SC) 273" held that conviction under Section 29 of the NDPS Act cannot sustain merely on the ground that the accused was found coming together with the co- accused in the absence of additional evidence to prove guilt of the accused. In "Karan Singh V/s The State (NCT of Delhi) 2006 (2) JCC (Narcotics) 83" Hon'ble High Court of Delhi granted bail to the accused who charge sheeted for committing the offence punishable under Section 29 of the NDPS Act observing that secret information is inadmissible unless and until provider of such information is examined in the Court.
43. Coming to the material on record, the person who gave the secret information about identity and involvement of the accused persons has not been examined during trial as a witness. Confession of the accused to the police is inadmissible under Section 25 of the Indian Evidence Act. Statements of the members of the raiding party Þ ß à á â ã ä å æ ç è è å é ê ë ã á ì í î â ï ð î$ñ í%ì'ò î)ó ë*ï+ì ï-ô/õ ô í%ö ÷'ö3ø4÷6ù ú8ì'û3ì ò3ü<ý=ò â ï ó ô í 36 about presence of both the accused together at the spot is not sufficient to hold them guilty. Thus, both the accused are acquitted of the charges under Section 29 of the NDPS Act in this case.
44. In view of the above observations and discussions I hold that though prosecution has failed to prove the charge of Section 29 of the NDPS Act against the accused persons, it has established its case beyond any shadow of doubt against accused Guljaman, that he was found in illegal possession of 4.800 Kilograms of Heroin, an Opium derivative and manufactured drug under Section 2(xi) and 2(xvi)(d) of the NDPS Act. Chemical name of Heroin is Diacetylmorpohine and as per the expert evidence on record, Diacetylmorpohine converts into Monoacetylmorphine and then to Morphine. Therefore, in order to determine the quantity of Diacetylmorpohine in the recovered substance, the first analysis report Ex. PW-3/X is taken into consideration. According to this report, percentage of Diacetylmorpohine in the sample Mark-A was found to be 16.66%. Total weight of the substance recovered from the possession of accused Guljaman is 4.800 Kilograms. Therefore, net weight of Diacetylmorpohine recovered from the possession of accused Guljaman is 799.68 Grams. As per the Entry No. 56 of the Table notified in the NDPS Act vide S. O. No. 1055(E) dated 19.10.2001, 799.68 Grams of Diacetylmorpohine falls in the category of commercial quantity. Thus accused Guljaman is held guilty and convicted for committing the offence punishable under Sections 21
(c) of the NDPS Act.
Announced in the open Court (Santosh Snehi Mann) on 06.07.2010 Special Judge, NDPS (Central) Tis Hazari Courts, Delhi þ ÿ ! #" $ &% (' )* ,+.- + $/ 0&/213054 67 &82 %29;:<% ' +