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26. I have heard arguments from Ld Additional P.P and Sh C L Gupta, Ld counsel for accused Yashpal, Sh Sanjay Suri, Ld counsel for accused Subhash and Sh Ved Pal, Ld counsel for accused Satbir.

27. It is argued on behalf of accused Satbir by Ld counsel Sh Ved Pal that mother of accused Satbir died in the year 1978 and he started living with his grand mother. Father of accused Satbir remarried and accused Yashpal is his step brother. The dispute arose between accused Yashpal and accused Satbir in respect to the properties and because of enmity and property dispute, accused Yashpal had conspired with accused Subhash who is relative of accused Yashpal to implicate the accused Satbir in false case. It is also argued by Ld counsel for accused Satbir that SIM for mobile phone no. 9813417563 which was issued in the name of Anju Devi had been used in both the mobile numbers recovered from accused Yashpal which proves that there was a conspiracy between accused Yashpal and accused Subhash. It was also argued on behalf of accused Satbir that SIM for mobile phone no. 9813417563 was obtained by accused Yashpal on forged documents as front page of voter I card belongs to Smt Anju Devi and back of that I D card was the photocopy of election I card of Smt Roshni Devi, as accused Yashpal was working in the Nursing Home of Dr Satyawati Sharma, he had the opportunity and means to get the photocopy in order to procure the SIM on forged documents. It is also submitted by Ld counsel for accused Satbir that he is innocent and has been falsely implicated in the present case.

29. On behalf of accused Yashpal, Sh C L Gupta, Ld counsel has argued the matter. It is argued by Ld counsel for accused Yashpal that contraband was recovered from the possession of accused Satbir, but he was let off by the police on the ground, that, he was innocent and was not aware of the presence of the contraband. Though mere possession of contraband is punishable under the provisions of NDPS Act. This shows that police in connivance with accused Satbir had falsely implicated the accused Yashpal in this case. Accused Yashpal is the step brother of accused Satbir, and accused Subhash is brother in law of maternal uncle of accused Yashpal. All the accused are relative, therefore, there is every likelihood of these people being in communication with each other telephonically, as such, this fact cannot be read against the accused persons. As regards conspiracy, it was argued by Ld counsel for accused Yashpal that prosecution has not been able to prove conspiracy and as the prosecution has not taken the opinion of handwriting expert regarding the person who has applied for mobile phone no. 9813417563, which was allegedly procured on the forged identification documents. The prosecution has failed to prove the conspiracy theory. It was also argued by Ld counsel for accused Yashpal that as per the case of the prosecution, accused Subhash had hired taxi of accused Satbir but accused Satbir sent another driver ie PW­14, but PW­14 Vijay has not supported the case of the prosecution and has not identified accused Subhash to be the passenger on that date. It was further argued by Ld counsel that the call received on 07.01.2006 on the phone of accused Satbir are from PCO as is stated by PW­38 and PW­39 and none of the call was made from mobile phone no. of the accused Yashpal or accused Subhash on the phone of accused Satbir. It was also argued that as per the settled preposition of law, possessor is deemed to be the owner and since accused Satbir was found in possession of contraband, he should have been arrested by police at that time and mere fact that he was not arrested and left by the police shows the case to be a false case. It is also argued by ld counsel for accused Yashpal that it is the case of the prosecution that accused Subhash procured charas from Kulsi village from person namely Taqdeer. But during investigation, when police reached there, he had reportedly expired before the raid of the police. No document has been placed or proved on record by the police to show the death of accused Taqdeer, this shows that the present case is false case.

31. As regards the possession of contraband, it was stated by Ld Additional P.P that recovery has been proved by the prosecution witnesses ie PW­1 to 4, PW­10 to 13 and PW­28 and has also not been disputed by any of the accused persons. Thus, accused Satbir should be convicted u/s 20 NDPS Act.

32. As regards accused Yashpal and Subhash, it was argued by Ld Additional P.P that accused Yashpal had procured the mobile phone no. 9813417563 on the forged documents and SIM of mobile phone no. 9813417563 was used in both mobile phones recovered from his possession as is clear from the document Ex.PW27/B, ie CDR of phone no. 9813417563, hence it connects accused Yashpal and accused Subhash with phone no. 9813417563. Accused Yashpal and accused Subhash were having frequent communication with each other. Two mobile phones make Nokia 2100 and Nokia 3315 were recovered from the possession of accused Yashpal. Further, it has been proved by the prosecution witnesses that PW­7 Smt Anju Devi and PW­16 Smt Roshni Devi had given their identification documents papers for medical examination in Nursing Home of PW­23 Dr Satyawati Sharma where accused Yashpal was working as lab technician, therefore, he had the opportunity to forge the documents and procure phone no. 9813417563. It is therefore submitted by Ld Additional P.P that prosecution has proved its case against all accused beyond reasonable doubt and they should be convicted.