Delhi District Court
Ncb vs . Bhoop Singh Etc on 31 July, 2010
NCB Vs. Bhoop Singh etc
IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE - NDPS
PATIALA HOUSE COURTS, NEW DELHI
Date of Institution: 29.06.2004
Judgment reserved on: 22.07.2010
Date of pronouncement: 31.07.2010
SC No. 50/08
ID No. 02403R0158192004
NCB Vs. 1 Bhup Singh
s/o Sh. Baksa Ram
r/o Kot Mohalla Basti,
Dhanker Mudthal, Haryana
2 Joginder Singh,
S/o Sh.Sooraj Bhan
r/o 710/5, Bada Jain Mandir,
Billa Wali Gali,
Halwai Hatta, Sonepat,
Haryana
3 Suraj Bhan
710/5, Bada Jainmandir
Billa Wali Gali, Sonepat,
Haryana
(Convicted)
JUDGMENT
1. The Narcotics Control Bureau (NCB) through its Intelligence officer (IO) Sh. Bhushan Joshi filed the present complaint against the accused persons.
1 NCB Vs. Bhoop Singh etc
2. Facts emanating from the complaint are that on 22/12/2003 at about 1730 hours Sh. H.K. Pandey, IO, received an information that one, Bhup Singh @ Bhoopa, aged 60 years, having dark wheatish complexion, 5'5'', slightly bald having tatoo of ''Bhup Singh'' in Hindi and ''Kamla'' in English on his right forearm was going to deliver approximately 1 kg. Hashish to his customer near the intersection of Azadpur, Karnal by pass on 23/12/2003 in between 0530 hours to 0615 hours. The information was reduced in writing and put up before the Superintendent who issued search authorisation in favour of Sh. Jyotimon, IO for the purpose of search and seizure.
3. The raiding party comprising of NCB officers reached at the spot. Two independent witnesses namely Joginder Kumar and Raju were joined. The NCB officers intercepted the accused Bhup Singh who was matching with the description given in the information. They told him about the information and served him a notice u/s 50 NDPS Act apprising him of his legal right to be searched before a gazetted officer or a magistrate on which he recorded his refusal. He was carrying a white polythene in his hand. They conducted the search of the polythene which was found to contain semi solid brown substance 2 NCB Vs. Bhoop Singh etc which on testing gave positive for hashish weighing 500 grams. Two representative samples of 25 grams each were taken and given mark AI and AII. They were sealed using the paper slips with the seal of NARCOTIC CONTROL BUREAU - DZU 3. Remaining material was kept in the same polythene, sealed with the same seal and given mark A. Test memo in triplicate was prepared. A panchnama was drawn.
Summons u/s. 67 NDPS Act was given to the accused to appear in NCB office where he tendered his statement admitting his involvement in the trafficking of Hashish. He disclosed that the Hashish belonged to Suraj Bhan @ Surjan r/o 710/5, Bada Jain Mandir, Billa Wali Gali, Halwai Hatta, Sonepat. On the basis of this information, Sh. P.L. Verma, Superintendent, issued search authorisation in favour of Sh. Jyotimon, IO for conducting the search at the above premises.
4. The NCB officers went to the premises. Two independent witnesses namely Rajinder and Ajay Kumar were joined. The door of down stairs was bolted from outside. On the stairs, one person was standing. The NCB officers told him about the information. He revealed his name as Joginder Singh. He told them that he stays at the first floor, his father stays at the ground floor and his younger 3 NCB Vs. Bhoop Singh etc brother stays at the second and the third floor. NCB officers served him a notice u/s 50 NDPS Act apprising him of his legal right to be searched before a gazetted officer or a magistrate on which he recorded his refusal. They conducted the search of premises. Since Joginder was not having the key of the room of the ground floor, with his permission, the NCB officers broke open the lock of the rooms and found a steel trunk in the third room. On opening, it was found to contain one HDPE sack containing four packets. Three packets had semisolid brown sticks and the fourth one had dry leaf covered plates with semi solid brown substance. On checking, the substance gave positive for hashish. They were given mark A, B, C and D. On weighing, their weights came to 2.010 kg., 2.010 kg., 1.915 kg. and 2.165 kg. respectively. Two representative samples of 25 grams were taken from the packets and given mark FI and FII. They were sealed using the paper slips with the seal of NARCOTIC CONTROL BUREAU - DZU 3. Remaining material was kept in a blue polythene, sealed with the same seal and given mark E. Rs.2,000/ were also recovered from the same trunk. One large cutter with traces of hashish, one weighing scale, weights of denomination of 1 kg., 500 grams, 200 grams, 100 grams and 50 grams, two brown cell tapes and some small polythene bags were also recovered from the same trunk. The packing material was sealed with the same seal and given 4 NCB Vs. Bhoop Singh etc mark H. Some documents were also collected from there.
Thereafter, the search of the first floor was conducted where accused Joginder Singh had been living. On search of inner third room, from an almirah a slab of semi solid brownish substance kept in a white polythene was recovered which gave positive test of hashish weighing 375 gams. It was given mark J. Two representative samples of 25 grams each were taken and given mark JI and JII. They were sealed using the paper slips with the seal of NARCOTIC CONTROL BUREAU - DZU 3. Remaining material was kept in a white cloth bag, sealed with the same seal and given mark J. Search was also conducted at the second and the third floor but nothing incriminating was recovered. Enquiry was made about the accused Suraj Bhan. NCB officers were told that he has gone somewhere.
Summon u/s. 67 NDPS Act was given to Joginder to appear in NCB office where he tendered his statement admitting his involvement in the trafficking of drug. Both the accused were arrested. The seizing officer and the arresting officer submitted their reports u/s. 57 NDPS Act to the superintendent. The case property was deposited in the malkhana. Statements of panch witnesses were recorded.
5 NCB Vs. Bhoop Singh etc
1. Summons u/s. 67 NDPS Act were sent to Suraj Bhan several times but he did not appear to tender his statement before the NCB officers.
2. The samples A1, F1 and J1 alongwith the forwarding letter and test memos were sent to CRCL through Jagdish Chand Havaldar. As per report, the samples mark A1, F1 and J1 were having the characteristic odour of cannabis with THC contents 2.5%, 2.2% and 2.0% respectively. After the investigation, the complaint was filed against all the accused u/s 20(b)(ii)(C) & 29 of the NDPS Act. Accused Suraj Bhan was arrested in some other case. After taking production warrant, he was arrested in this case.
3. On their appearance, after complying with the requirements contemplated u/s. 207 CrPC and hearing arguments, prime facie case was made out. Charge u/s 20 (b)(ii)(B) and 29 r/w 20(b) (ii)(B) NDPS Act was framed against the accused Joginder and Bhup Singh. Charge u/s 29 r/w 20(b)(ii)(C) and 20(b)(ii)(C) was also framed against the accused Suraj Bhan. They pleaded not guilty and claimed trial.
4. To substantiate its allegations against the accused, 6 NCB Vs. Bhoop Singh etc prosecution examined as many as twelve witnesses.
PW1 Sh. K.C. Aggarwal was the chemical examiner CRCL. Under his supervision, the samples were analysed. He proved the reports ExPW1/4 and Pw1/5.
Pw2 Sh. Jagmohan Khati was one of the member of the raiding team. Accused Bhup Singh had tendered his statement u/s. 67 NDPS Act ExPW2/2 before him. He submitted the report qua the involvement of Suraj Bhan, the main supplier of hashish at whose instance, accused Bhup Singh had come to deliver hashish to someone. He arrested the accused Bhup Singh and submitted the arrest report ExPW2/6 to the Superintendent.
PW3 Sh. Jyotimon had received the search authorisation ExPW3/1 and led the raiding party. He had given the notice u/s 50 NDPS Act ExPW3/2 to the accused Bhup Singh and drew a panchnama Ex. Pw3/4. He had deposited the case property, samples and test memo in the malkhana. He again led the team in pursuant to the search authorization Ex. PW 3/13 to the house of Suraj Bhan at Sonipat. He had given the notice u/s 50 NDPS Act ExPW3/14 to the accused Joginder and drew a panchnama Ex. Pw3/15. He had deposited the case property, samples and test memo in the malkhana. He recorded the statement of panch witnesses Ex. Pw3/23 and Pw3/24. He sent the summons to Suraj 7 NCB Vs. Bhoop Singh etc Bhan vide registered post Ex. PW3/25. He also submitted the arrest report to the Superintendent. The case property and the samples were produced before him which he identified as Ex. P1 to P59.
PW4 Sh. Joginder Kumar was the panch witness of the recovery effected at GT Karnal Road. He had also tendered his statement ExPW4/1 and signed the panchnama ExPW3/4.
PW5 Sh. B. Joshi, IO had filed the complaint ExPW5/1. He was also the member of raiding team which made recovery of hashish at GT Karnal by pass, and also at Sonipat. He had written the statement of panch witness Ex. PW5/3. He also sent summons to Suraj Bhan. On 27.5.04, he alongwith IO went to Sonipat to serve the summons but did not find Suraj Bhan there. Accused Suraj Bhan appeared before him on 16.6.05 and tendered his statements Ex. PW5/11 and PW5/12.
Pw6 Sh. H.K. Pandey had received the intelligence ExPW6/1 which he put up before Sh. P.L. Verma Superintendent. He was one of the member of the raiding team at both the places. Accused Joginder Singh had tendered his statement U/s. 67 NDPS Act Ex PW6/2 before him. He arrested the accused Joginder and submitted the arrest report Ex PW6/5 to the Superintendent. He had written the statement of panch witness Joginder Kumar Ex. PW4/1.
PW7 Havaldar Jagdish Chand had taken the samples, test 8 NCB Vs. Bhoop Singh etc memos in duplicate along with the forwarding letter to CRCL and obtained its receipts Ex PW1/2 and Pw1/3 from CRCL.
Pw8 Sh. Ashwani Kumar had accompanied IO Bhushan Joshi to serve the summon u/s 67 NDPS Act on SurajBhan.
Pw9 Sh. Mangal Das was also the member of the raiding team which effected recovery at both the places.
Pw10 Sh. P.L Verma was the Superintendent in the NCB office. The information Ex. PW6/1 was put up before him on the basis of which he issued search authorization Ex. Pw3/1 in favour of Pw3. He also issued seal of NARCOTICS CONTROL BUREAU DZU 3 to PW3 after making entry Ex Pw3/20 in the register. He had also received an information Ex. Pw2/3 from IO Jagmohan Khati. He issued search authorization Ex. Pw3/13 in favour of Pw3 to conduct search in the house at Sonipat. He also accompanied the raiding team. He received the case property and the samples including the test memo and made entry Ex. Pw10/1 in the malkhana register. The reports u/s. 57 NDPS Act were submitted to him by the seizing officer and the arresting officers. He sent the samples to CRCL through Hawaldar Jagdish Chand. He received the reports and the remnant samples from CRCL.
Pw11 Sh Jagdish Ram was daftari in NCB office. He proved the entry in the dispatch register vide which a speed post was 9 NCB Vs. Bhoop Singh etc sent to Suraj Bhan.
PW N.S. Yadav, IO arrested the accused Suraj Bhan vide arrest memo Ex. PW12/A.
5. The accused were examined u/s 313 Cr.P.C. wherein they controverted the prosecution case and claimed to have been falsely implicated. They stated that nothing was recovered from them or at their instance. Their signatures were taken on many blank papers and written/printed papers by use of force by the NCB officers. Accused Suraj Bhan through his counsel stated that panch witness Joginder was enimical towards him as he was complainant in one of the case in which Joginder had been facing trial. He stated that Joginder had involvements in the NDPS cases. Accused did not prefer to lead evidence in their defence.
6. I have heard the arguments advanced by Ld. SPP Sh.
Rajesh Manchanda for NCB and Ld. counsel Sh. R.S. Kundu for the accused Joginder and Suraj Bhan and Ld. Amicus Curie Sh. Sameer Chandra for the accused Bhup Singh.
7. Ld. Counsel Sh. R.S. Kundu contended that the accused have been falsely implicated in this case, no recovery was effected 10 NCB Vs. Bhoop Singh etc from them or at their instance. The accused did not give any statement u/s 67 and their signatures were obtained on blank papers. Ld. Counsel further argued that the accused Suraj Bhan had no connection with the premises from where the recovery of 8.100 kg of Hashish has been shown. He was not served any summons. He had enmity with Joginder one of the panch witness, at whose instance, the accused has been falsely implicated. Joginder Singh had involvements in number of NDPS cases. The accused did not get an opportunity to cross examine this very witness. The complaint was filed before his arrest. His statement u/s 67 NDPS Act carries no significance when the recovery was not effected in his presence. For accused Joginder, Ld. Counsel stated that the substance was planted on the accused and no recovery was effected from him. He did not make any statement and his signatures were taken on some blank and written papers. No person from the locality was joined, though the raid was allegedly conducted on prior information. There are contradictions in the testimony of the NCB officers and no panch witness was examined.
8. Ld. Counsel Sh. Sameer Chandra argued that the accused Bhup Singh has no connection with Suraj Bhan nor any contraband was recovered from him. He was lifted from his house and was 11 NCB Vs. Bhoop Singh etc falsely implicated. He has clean antecedents. He did not give any statement and a false story was concocted by the prosecution to falsely implicate the accused.
13. Ld. Spl. PP per contra argued that no material contradictions came in the cross examination of the official witnesses, they have proved the case of the prosecution beyond reasonable doubt, due compliance u/s 42, 50, 55 and 57 of the NDPS Act was made. All the link witnesses have been examined to rule out the possibility of tampering with the seal. Their statements incriminate them in the trafficking of contraband. They did not retract from their statements at the earliest available opportunity nor appeared in the witness box to prove that their statements were not voluntary which are sufficient enough to base their conviction. Ld. SPP placed reliance on the case M.Prabhulal Vs. A.D. DRI 2003 (3) JCC 1631 SC, Rehmatulla Vs. NCB - 2008 (3) JCC (Narcotics) 174 and Kanhaiya Lal Vs. UOI - 2008 (1) JCC (Narcotics) 23. Ld. SPP further stated that PW Joginder was partly examined, due to his death, he could not be further examined. The other witnesses could not be traced. It is a case of recovery of huge quantity of Hashish and it is impossible for the NCB officers to plant the case property on them. Direct & circumstantial evidence and the documents clearly prove the 12 NCB Vs. Bhoop Singh etc case of the prosecution and the complicity of the accused in the alleged offence.
14. I have considered the rival contentions and gone through the evidence and the documents on record. I have also perused the case laws relied upon by the prosecution as well as the defence.
15. The accused have been charged u/s. 20 and 29 of the NDPS Act. Section 20 reads as whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder Produces, manufactures, possesses, sells, purchases, transports, imports interState, exports interState or uses cannabis shall be punished....
Section 29 provides punishment for abetment and criminal conspiracy. A person abets the doing of a thing, who engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to doing of that thing. Criminal conspiracy is defined u/s. 120A Indian Penal Code which reads as "when two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an 13 NCB Vs. Bhoop Singh etc agreement is designated a criminal conspiracy.
16. On perusal of testimony of the prosecution witnesses I find that the raid at Karnal by pass was conducted on the basis of the secret information Ex. PW6/1 received by PW6 which was very specific qua the accused Bhoop Singh that on 23.12.2003 in between 0530 hours to 1615 hours he would come at the intersection of Azadpur Karnal by pass to deliver approximately 1 kg of hashish to his customer. In that information, description and the identity mark of the accused was given. Pw6 put up this information before Pw10 who issued search authorization Ex. PW3/1 in favour of Pw3. The raiding party comprising of number of officers including of the rank of Assistant Director and Pw10 himself went to the spot. The accused was identified from the description given in the information and the tattoo which he was having on his right forearm. Prosecution witnesses have stated that two panch witnesses Joginder Singh and Raju were joined in whose presence whole search and seizure proceeding was conducted. The prosecution had also called the panch witness Pw4. His examination was partly recorded and then deferred for want of case property but due to his unfortunate death he could not be called for further examination. In his examination, he has stated that he had joined the proceedings and in his presence, 14 NCB Vs. Bhoop Singh etc from the bag in the hand of the accused Bhup Singh, 500 grams of hashish in the form of semi solid brown substance was recovered. Pw3 who had led the team has stated that after apprehending the accused, he was told about the information, showed him the search authorization Ex. PW3/1 and a notice u/s. 50 NDPS Act Ex. Pw3/2 was served on him apprising of his legal right to be searched before a Gazetted Officer or a Magistrate. He stated that the accused declined his search before them and thereafter the search of the bag was conducted which resulted in recovery of 500 grams of hashish. He stated that on the spot, samples were drawn test memo Ex. Pw3/3 in triplicate was prepared and a panchnama Ex. Pw3/4 was drawn. He stated that before proceeding for raid, he was issued seal NARCOTICS CONTROL BUREAU DZU 3 which fact is corroborated by PW10 who also proved the relevant entry Ex. PW3/20 in the seal movement register. Testimony of PW 3 duly corroborated by Pw2, Pw5, Pw6, Pw9 and Pw10. They have stated that they left the office at about 0500 hours, apprehended the accused at about 0630 hours and took about 1½ hours to complete the proceedings. The testimony of Pw6 remained unrebutted and nothing material came in the cross examination of the other witnesses of recovery to lead an inference that it was a case of planted recovery. They were subjected to lengthy cross examination but they remained consistent 15 NCB Vs. Bhoop Singh etc and cogent. Though some minor contradictions came in their testimony qua the time they reached the NCB after the first raid and the time, they proceeded for the second raid but these contradictions are quite natural when the witnesses are examined after a lapse of time.
17. In the case of Siddiqua Vs. NCB 137 (2007) DLT 500 it was observed :
"A perusal of the statements of the prosecution witnesses would show that on material aspects, there were no contradictions. A small contradiction here and there about the timings or preparation of Test Report, could not make the testimonies of the witnesses doubtful. In my opinion, where the witnesses do not make any contradictions and all witnesses, parrot like repeat the same statement, one after another, such statements would not be natural statement. It has now been scientifically proved that if ten persons watch one incident and if they are all asked to describe the same incident after some time, each persons shall give a description of the incident which will not match in minute details with the description of the other. Minor discrepancies are very natural to occur in testimony of different witnesses and the testimony of a witness cannot be rejected on the ground that there were minor discrepancies or contradictions."
18. As regards examination of other panch witness Raju, 16 NCB Vs. Bhoop Singh etc perusal of the record reveals that he was not found at the given address. It is not the case that his examination was dispensed with by the prosecution. In this case, Ld defence counsel has alleged that the other panch witness Jogender did not have clean antecedents and had involvement in the cases under NDPS Act. He had also enmity with the accused Suraj Bhan who had lodged a report against him prior to the incident.
19. Perusal of the record of the present case reveals that it was not Jogender who had given information to the police. He was one of the panch witness to the first recovery which was effected from Bhoop Singh and not from Suraj Bhan. He was not taken for the second recovery. He had also appeared in the witness box. Even otherwise, there is no rule of law to the effect that the evidence of partisan witnesses cannot be accepted. It should, no doubt, be subjected to careful scrutiny and accepted with caution. In this case, there are number of witnesses of recovery who have categorically stated that from the search of the accused Bhup Singh, 500 grams of hashish was recovered. Their testimony is wholly reliable and trustworthy. Nothing could be brought out in their cross examination to discredit them. Documentary and circumstantial evidence on record corroborate their testimony. In the case of Krishna Mochi & 17 NCB Vs. Bhoop Singh etc Ors. Vs. State of Bihar & Ors 2002(2) CC Cases (SC) 58 it was held that :
It is the duty of the Court to separate grain from chaff
- when chaff can be separated from grain, it could be open to the court to convict and accused notwithstanding that evidence found difficult to prove guilt of other accused persons - falsehood of particular material witness or material particular would not secluded from the beginning to end - the maxim Falsus in uno falsus in omnibus has no application in India and the witnesses cannot be branded as liar".
The Court while appreciating the evidence should not lose sight of the realities of life and can not afford to take an unrealistic approach by sitting in ivory tower. It is easy to pass an order of acquittal on the basis of minor points by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not wight with the court so long it does not affect the prosecution case. In a criminal trial credible evidence of even a solitary witness can form basis of conviction and that of even half a dozen witnesses may not form such a basis unless their evidence is found to be trustworthy in as much as what matters in the matter of appreciation of evidence of witnesses is not the number of witnesses but the quality of their evidence.
20. Pw3 has stated that after the recovery, the accused Bhoop Singh was given summons u/s. 67 NDPS Act to appear in the NCB office. Pw2 who had recorded his statement stated that the accused 18 NCB Vs. Bhoop Singh etc had voluntarily disclosed some facts inculpating Suraj Bhan that he was the main supplier of hashish, at whose asking, he had come there to deliver hashish to someone. He had given certain facts and personal information which could only be revealed by him. He did not retract from his statement at the earliest available opportunity. He was also taken to the hospital for medical examination and his MLC does not show any sign of injury on his person. The MLC falsifies the allegations of the accused that he was subjected to duress and coercion and his signatures were obtained on certain papers which were fabricated later on. The prosecution witnesses have also denied this fact. In pursuant to the information given, the raid was conducted at the premises address of which was given by him which led to recovery of more quantity of hashish. He could not explain his presence at the spot. There are so many other facts disclosed by him but he has failed to prove that any of facts mentioned therein is false. I am of the considered view that the statement made by him was made voluntarily.
21. In the case of Rehmatullah vs. NCB supra reference to the judgments concerning the interpretation of section 67 NDPS Act was made. The case of Raj Kumar Karwal vs. Union of India 1991 CrLJ 97 (SC) was also referred. It was held that such statements made to 19 NCB Vs. Bhoop Singh etc the officers of the Department of Revenue Intelligence are not hit by Section 25 of the Evidence Act.
In M. Prabhulal vs. Assistant Director supra it was held that if the confessional statement is found to be voluntary and free from pressure, it can be accepted.
22. Now coming to the second recovery, Pw2 after recording the statement of the accused Bhoop Singh Ex. Pw2/2 submitted a report Ex. PW2/3 qua the involvement of Suraj Bhan and the possibility of recovery of more charas from his house at Sonepat. Pw10, on this report, issued search authorisation Ex. Pw3/13 in favour of Pw3 who with his team proceeded there. He was also accompanied by Pw10, the Assistant Director Srikant Jadav and Smt Pushpadevnath besides other NCB officers. PW3 stated that on reaching the spot, they found the house bolted from outside and the accused Joginder standing at the stairs of the first floor. He was told about the information and showed the search authorization. He was also served notice u/s. 50 NDPS Act Ex. PW3/14. Accused Joginder had told to the NCB officers that his father Suraj Bhan lives at ground floor and he with his family lives at the first floor. He also told the officers that at this moment, his father was not there. Pw3 stated that in the presence of the accused Joginder the search at ground floor 20 NCB Vs. Bhoop Singh etc was made. Two rooms were found locked which were broken with the permission of accused Jogender since he was not possessing the key. He stated that from the third room a trunk was found which had one HDPE sack containing 4 packets which on testing gave positive for hashish total weighing 8.100 kg. He further stated that Rs. 2000/, one large cutter with traces of hashish, one weighing scale, weights, brown cello tapes, some polythene bags were also recovered from the trunk.
23. Perusal of the panchnama Ex. PW3/15 reveals that some documents were also recovered from the premises which relate to accused Suraj Bhan. Admittedly in this case those documents were not placed on record but it is stated by Pw3 that he had seized the documents.
24. Ld counsel for the accused Suraj Bhan has stated that the accused did not have any connection with the said house nor was present at the time of recovery. I do not find substance in this contention. The accused himself had produced a document in his statement recorded u/s. 313 CrPC i.e. a FIR lodged against the panch witness Joginder, mark A where he had given the same address which was raided and resulted in recovery of 8.100 kg of 21 NCB Vs. Bhoop Singh etc hashish. Accused Joginder who is the son of Suraj Bhan was also apprehended from the same house. In his statement Ex. Pw4/1 Joginder never stated that Suraj Bhan never lived there or has no connection with the said premises. In this case the summons were sent by the NCB officers to the accused Suraj Bhan through registered post and it was reported that Suraj Bhan was not in the house, he has gone outside and his family members refused to take it. The reports were exhibited as Pw3/26 and Pw5/5. The accused did not appear before the NCB office even after the arrest of his son Joginder. He avoided his appearance and was produced in the court on production warrant after his arrest in some other case. The facts and circumstances prove his conscious possession of Hashish at the said premises. It has also come in the statement of Bhup Singh Ex. PW2/2 that Suraj Bhan used to procure drug. Statement of Suraj Bhan was also recorded after his arrest where he admitted his complicity in drug trafficking. Accused Joginder has also stated that the substance recovered from his almirah at first floor was given to him by his father i.e. accused Suraj Bhan.
25. Pw3 has stated that after the seizure at the ground floor, the first floor which was in possession of Joginder Singh was searched from the almirah, in the third room, 375 grams of hashish 22 NCB Vs. Bhoop Singh etc was recovered. He proved the panchnama Ex. PW3/15 and the test memo Ex. PW3/16 prepared on the spot and identified the case property correctly. The accused Joginder in his statement Ex. Pw6/2 also admitted the recovery.
26. As regards joining of persons from the locality, the prosecution has given an explanation that since they had already associated two independent persons before the alleged raid so they did not join the local persons. I find substance in this explanation. Even otherwise joining public witness is rule of caution and not the rule of law. Prosecution has examined number of witnesses who have proved the recovery and the conscious possession of the accused. Nothing came in their cross examination to doubt on them. As regards examination of two panch witnesses namely Rajinder and Ajay Kumar, summons were sent to them but they were not found at the said address. It is not the case that no effort was made by the NCB to produce them in the witness box.
27. In Delias Christopher v. Customs 2004(3) JCC 147 it was held "It is true that public witnesses inspire more confidence and enable the court to return findings with added confidence but the law is well settled that a conviction may be based on the testimonies of 23 NCB Vs. Bhoop Singh etc official witnesses even".
28. Pw3 has stated that after the recovery, he had deposited the case property, samples, test memo in the malkhana which fact is proved by Pw10 the incharge malkhana. the relevant entries Ex. PW10/1 in the malkhana register were also proved. Pw3 the seizing officer also submitted the report on the back of the search authorization as well as the special report u/s 57 NDPS Act Ex. PW3/5 to the Superintendent. Pw2 and PW6 had also submitted the arrest reports Ex. PW2/6 and Pw6/5 u/s. 57 NDPS Act respectively. Pw10 has confirmed the receipt of the above reports.
29. Prosecution has examined all the link witnesses to rule out the possibility of tampering with the case property ie Pw3, the seizing officer who had also deposited the case property in the malkhana, Pw10 the malkhana incharge, Pw7 who had taken the samples alongwith test memo and the Pw1, the chemical examiner CRCL from where the receipts EX PW1/2 and Pw1/3 were issued. Pw1 has proved the reports Ex. Pw1/4 and Pw1/5 qua the samples sent to CRCL as per which the samples had the characteristic odour of cannabis with THC content 2.5%, 2.2% an 2.0% respectively. Thus all procedural compliance u/s. 55 and 57 NDPS Act was made as 24 NCB Vs. Bhoop Singh etc provided and guided in the case of Ritesh Chakraborty Vs State of Madhya Pradesh 2006 (3) JCC (Narcotics) 150.
30. Now coming to the conspiracy, after the first recovery, the accused Bhoop Singh tendered his statement Ex. PW2/2 inculpating Suraj Bhan and Jogender in the business of drug trafficking. He had stated that 500 grams of hashish recovered from his possession was given by accused Suraj Bhan to deliver to one of his customer. This information led to further recovery of 8.100 kg of hashish from the house of Suraj Bhan where the accused Jogender was found. 375 grams of hashish was also recovered from the portion of the premises in occupation of the accused Jogender. Joginder also tendered his statement Ex. PW6/2 before Pw6 admitting the recovery and stated that the hashish was given to him by Suraj Bhan. The recovery of cutter having traces of hashish, weighing balance, weights and packing material also prove the fact that accused Suraj Bhan was actively involved in trafficking of hashish.
31. In this case the accused failed to rebut the two statutory presumptions in favour of the prosecution u/s 35 and 54 of the Act. In the case of Madan Lal v. State of HP 2003 (3) JCC 1330 it was held that once possession is established, the person who claims that 25 NCB Vs. Bhoop Singh etc it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge. Section 35 of the Act is given a statutory recognition of this position because of presumption available in law and similar is the position in terms of Section 54 where also presumption is available to be drawn for possession of illicit articles.
32. Facts and circumstances prove their complicity in acquiring and trafficking of hashish. In a case of criminal conspiracy or abetting, the direct evidence is seldom available. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution often relies on evidence of acts of various parties to infer that they were done in reference to their common intention. The conspiracy can undoubtedly be proved by such circumstantial evidence. In the case of Eran Eliav V. State 2008 Drugs Cases (Narcotics) 98 it was observed - Both abetment and criminal conspiracy are fiendishly difficult to establish by virtue of direct evidence, it can be established by indirect or circumstantial evidence which is of an impeccable nature. In this case the accused Bhoop Singh was apprehended with 500 grams of hashish. 375 grams of hashish was recovered from the conscious possession of Jogender in pursuant to the information given by Bhup Singh. 8.100 26 NCB Vs. Bhoop Singh etc kg of Hashish was recovered from the ground floor of the premises which was in occupation of accused Suraj Bhan. From the evidence and their statements it is proved that they had procured / acquired hashish from Suraj Bhan.
33. It is a case of recovery of 8.100 kg of hashish from the conscious possession of accused Suraj Bhan. It is not possible to plant such a huge quantity upon the accused person. Moreover, there is no reason to falsely implicate the accused person. In the case of State of Punjab Vs. Balwant Rai 2005(1) JCC (Narcotics) 103: "The quantity was large, it was held that the question of implanting does not arise". In the case of Sanjiv Kumar Vs. State of H.P. 2005(1) Crimes 358 (H.P.) it was observed: "It is not believable that the police would implicate an innocent person to such a serious case by planting a huge quantity of charas on his person...... police had no axe to grind in implicating the accused".
34. On considering the facts available on record, the documents, testimony of witnesses after its detailed scrutiny, I am of the considered opinion that prosecution has proved beyond reasonable doubt that the accused Bhoop Singh, Jogender and Suraj Bhan had conscious possession of hashish weighing 500 gms, 375 27 NCB Vs. Bhoop Singh etc gms and 8.100 kg. The prosecution has also proved the complicity of the accused Bhoop Singh qua acquiring and trafficking 500 grams of hashish with Suraj Bhan and that of Jogender for acquiring and possessing 375 grams of hashish with Suraj Bhan. I hold the accused Bhoop Singh and Jogender guilty of the offence punishable u/s. 20(b)
(ii)(B) and 29 r/w Section 20(b)(ii)(B) of the NDPS Act for the said quantity and convict them thereunder. Accused Suraj Bhan is also held guilty of the offence punishable u/s. 20(b)(ii)(C) and 29 r/w Section 20(b)(ii)(C) of the NDPS Act for the said quantity and convicted thereunder.
Announced in open Court on this 31st day of July, 2010 Sanjiv Jain Special Judge NDPS : New Delhi Patiala House : New Delhi 28 NCB Vs. Bhoop Singh etc IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE - NDPS PATIALA HOUSE COURTS, NEW DELHI SC No. 50/08 ID No. 02403R0158192004 ORDER ON SENTENCE
1. Vide separate judgment of even date, accused Joginder and Bhoop Singh have been convicted of the offence punishable u/s. 20
(b)(ii)(B) and 29 r/w Section 20(b)(ii)(B) of the NDPS Act.
2. I have heard Ld. counsel Sh. R.S. Kundu and Sh. Sameer Chandra for the convicts and Special PP Sh. Rajesh Manchanda for NCB on the point of sentence.
3. Ld. SPP has prayed for maximum sentence provided under the Act and submitted that the sentence should be proportionate to the gravity of offence.
4. Ld. Counsel Sh. R.S. Kundu submitted that convict Joginder is aged about 48 years, a property dealer has two unmarried children and does not have criminal antecedents. He has already gone rigor of incarceration for a period of about 2 years and seven months. 29 NCB Vs. Bhoop Singh etc
5. Ld. Counsel Sh. Sameer Chandra submitted that convict Bhoop Singh is aged about 70 years and does not have criminal antecedents. He has already gone rigor of incarceration for a period of about 2 year and eleven months. Ld counsel has requested for taking lenient view.
6. I have considered the submissions.
The Hon'ble Supreme Court in the case of Union of India Vs. Kuldeep Singh 2004 Vol. 2 SCC 590 held :
Imposition of sentence without considering its effect on the social order in many cases may be unreally a futile exercise. The social impact of the crime e.g. Where it relates to offences relating to narcotics drugs or psychotropic substance, which have great impact not only on the health fabric but also on the social order and public interest, cannot be lost sight of and per se requires exemplary treatment. Any liberal attitude by imposing meager sentences of taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of such offence will be result wise counter productive in the long run and against social interest which needs to be cared for and strengthened by a string of difference inbuilt in the sentencing system. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the 30 NCB Vs. Bhoop Singh etc sentencing process has to be stern where it should be.
7. In the present case, the convicts are involved in the case of acquiring / possessing / trafficking of hashish. The effect of consumption of hashish on the society is disastrous. It eats away the life and vigour in the society. Illegal trade of such a high quantity would have adverse impact on the lives of uncountable persons. The incident pertains to the year 2003.
8. Taking into consideration the totality of facts and circumstances, age, antecedents and family background of the convicts, I sentence the convict Joginder to undergo rigorous imprisonment for a period of two years and six months and to pay fine of Rs. 15,000/ in default thereof to undergo simple imprisonment for a period of three months for offence punishable u/s. 20(b)(ii)(B) of the NDPS Act and to undergo rigorous imprisonment for a period of 2 year 6 months and to pay fine of Rs. 15,000/ in default to undergo simple imprisonment for a period of three months for offence punishable u/s. 29 r/w Section 20(b)(ii)(B) of the NDPS Act. Both the sentences shall run currently.
9. Convict Bhoop Singh is sentenced to undergo rigorous imprisonment for a period of two years and nine months and to pay 31 NCB Vs. Bhoop Singh etc fine of Rs. 15,000/ in default thereof to undergo simple imprisonment for a period of three months for offence punishable u/s. 20(b)(ii)(B) of the NDPS Act and to undergo rigorous imprisonment for a period of two years and nine months and to pay fine of Rs.15,000/ in default to undergo simple imprisonment for a period of three months for offence punishable u/s. 29 r/w Section 20(b)(ii)(B) of the NDPS Act. Both the sentences shall run concurrently. They are given benefit of section 428 Cr.P.C.
Announced in open Court on this 31st day of July, 2010 Sanjiv Jain Special Judge NDPS : New Delhi Patiala House : New Delhi 32