Vijendra @ Behra vs State
2010 Latest Caselaw 2283 Del

              IN THE HIGH COURT OF DELHI AT NEW DELHI

                        Crl.A.No.841/2005

                        Date of Decision: 29.04.2010


[email protected] BEHRA
                                    .....Appellant

                        Through:   Mr. Imtiaz Ahmed with Mrs.
                                   Naghma Imtiaz and Mr. Kamran
                                   Malik, Advs.

                        versus

STATE                               .....Respondent

Through: Mr. Naveen Sharma, counsel for the State.

CORAM:

HON'BLE MR. JUSTICE S.L. BHAYANA

1. Whether reporters of local paper may be allowed to see the judgment? Yes

2. To be referred to the reporter or not? Yes

3. Whether the judgms.ent should be referred in the Digest?

Yes

S. L. BHAYANA, J

By this judgment, I will dispose of this appeal filed by the

appellant against the judgment passed by the learned Trial

Court dated 12.9.2005 wherein the learned Additional Sessions

Judge has convicted the appellant and sentenced the appellant

under Section 20 NDPS Act to undergo ten years RI and to pay a

fine of Rs. one lac and in default of payment of fine, the convict

would further undergo RI for two years.

2. It is the case of the prosecution that secret information

was received at the police station on 09.4.2004 by SI Ramesh

Dutt from one informer that one boy namely Vijender aged

about 24-25 years who is indulging in sale of Ganja would

come from Jahangir Puri via Railway Track No. 7 towards

Shalimar Bagh and he was carrying large quantity of Ganja

with him. On receiving this secret information, a raiding party

was organized and accordingly the appellant was apprehended

by the police on 09.4.2004 at 7.30 PM. The appellant was

found carrying 20 kgs of Ganja in a white color plastic bag

which was seized by the police.

3. The charge was framed against the accused under Section

20 of NDPS Act to which he pleaded not guilty and claimed trial.

The prosecution has examined seven witnesses in support of its

case. PW6 SI Ramesh Dutt has deposed before the court that on

09.4.2004 he was posted at Shalimar Bagh Police Station when

he received secret information from the informer that one boy

namely Vijender who was indulging in the sale of Ganja would

come nearby Railway Track No. 7 towards Shalimar Bagh

carrying large quantity of Ganja with him. He organized a

raiding party comprising of PW1 Const. Rampal and PW2 Const.

Kaptan Singh. The raiding party along with the informer went to

the alleged spot and the SI requested 5-7 public persons to join

the raiding party but none agreed. At about 7.20 PM nakabandi

was done. The appellant was seen coming from the railway

track at about 7.30 PM and he was carrying white colour plastic

bag on his shoulder. On pointing out by the informer towards

the accused, he was apprehended by him and his raiding party.

On personal search of the accused, Ganja was recovered from

the bag of the appellant which he was carrying. A notice under

Section 50 of NDPS Act was served upon the accused by him

and then he weighed the Ganja which was found to be 20 kgs.

Out of 20 kgs of Ganja, 1 kg Ganja was separated as sample and

kept in a separate parcel. The remaining Ganja was kept in the

plastic bag in which it was recovered and then it was converted

into a cloth parcel. He then sealed both the parcels with his seal

of RDS and filled in FSL form and affixed his seal of RDS over it

and handed over the seal to PW2 Const. Kaptan Singh.

4. I have also gone through the statement of PW2 Const.

Kaptan Singh who has supported the case of prosecution and

also supported the version given by PW6 SI Ramesh Dutt. He

has further deposed that he collected one parcel duly sealed

with the seals of RDS and BRM and the FSL form from the

MHC(M) of Shalimar Bagh Police Station and deposited the same

with seals intact in the office of FSL, Madhuban Chowk.

5. PW5 ASI Rampal has deposed before the court that on

09.4.2004 at about 10.30 PM, PW1 Const. Rampal handed over

to him the original rukka and the copy of the FIR of this case and

he along with the constables reached the place of apprehension

of the accused.

6. PW7 HC Subhash Chander has deposed that on 04.4.2004,

SHO Insp. B.R. Mann deposited in the malkhana, two parcels and

FSL form duly sealed with the seals of RDS and BRM and its

entry was made in malkhana register No. 19 at Sr. No. 2418.

7. It is argued by learned counsel for the appellant that one

kg. Ganja was separated by the SI Ramesh Dutt in a separate

sealed parcel and sent to the CFSL for examination but only 754

gms. of Ganja was received from the CFSL instead of one kg., as

the report of the CFSL dated 14.7.04 clearly says that the weight

of the sample was 754 gms. and that the quantity was tampered

by the raiding party at the time of separating the sample. On

the other hand, learned APP for the State has submitted that

only 754 gms. of sample was received from the CFSL out of one

kg., as the rest of the quantity was used in the examination of

Ganja by the CFSL and there is nothing unusual in the same and

there is no tampering in the weight of Ganja seized by the

raiding party.

8. Learned counsel for the appellant further argued that no

public witnesses have been joined by the IO in this case at the

time of personal search of the appellant nor the recovery of

Ganja has been witnessed by any public person. I have gone

through the testimony of PW6 SI Ramesh Dutt wherein he has

clearly deposed that after reaching at the spot, he requested 5-7

public persons to join the raiding party but none agreed. PW1 &

PW2, Const. Rampal and Const. Kaptan respectively have also

further deposed in their testimonies that PW6 requested several

passersby to join the raiding party but none agreed and left the

spot showing their inability. I have also gone through the cross-

examinations of these witnesses but no serious discrepancy has

been pointed out in the cross-examination which could discredit

the testimony of these PWs. The case of the prosecution can't

be thrown away simply because no public witness has been

joined at the time of recovery of the ganja. This view finds

supports from the observations made by Supreme Court in

P.P.Beeran Vs. State of Kerala 2001 (9) SCC 571, The Supreme

Court observed that the testimony of the police officials cannot

be rejected on the ground that police official was the sole

witness of recovery of ganja and the public witness, who was

examined , turned hostile. The Supreme Court observed that

the conviction can be based on the sole testimony of a Sub-

Inspector if the other circumstances existed, shall corroborate

the testimony. This court in Jawahar Vs State Crl.Appeal no

690/2000 deiced on 23.03.2007 observed as under:-

"to associate with investigation is harassment of the public witness that takes place in the courts. Normally a public witness should be called once to depose in the court and his testimony should be recorded and he should be discharged. But experience shows that adjournment is given in criminal cases on all excuses and if the adjournment is not given. It is considered as a breach of the right of hearing of the accused. Theses adjournments are specially taken by the counsel As far as non association of public witness at the time of recovery is concerned, I consider that this is not an infirmity sufficient to throw out the case of the prosecution. It is very hard these days to get association of the public witnesses in criminal investigation. Investigation itself is a tedious process and a public witness,

who is associated, has to spend hours at the spot. Normally, nobody from public is prepared to suffer any inconvenience for the sake of society. The other reason for the public witness not readily agreeing s for accused persons, when witnesses are parents, just to see that witnesses get harassed by calling them time and again. The excuses normally given in court are: the counsels having urgent personal work, left the court, death of some near relatives etc, the counsel being busy in arguing other matter in other court or cross examining other witnesses in some other court. This attitude of the courts of sending witness back is a major cause of harassment which discourages public from associating in the investigation of any case. Since the police if faced with this handicap, the police cannot be blamed for not associating public witness. There is no presumption that the police witnesses are not credible witnesses. The testimony of every witness, whether from public or police, has to be judged at its own merits and the court can believe or disbelieve a police witness considering the intrinsic value of his testimony. Police witnesses are equally good witnesses and equally bad witnesses as any other witnesses and the testimony of police witnesses cannot be rejected on the ground that they are official witnesses."

I, therefore, find that non-joining of public witness could not be

a ground to set aside the conviction.

9. Learned counsel for the appellant further submits that the

appellant is a very poor person and he cannot deposit the fine of

Rs. 1 lac imposed upon him. It is further submitted on behalf of

the appellant that he has already undergone 6 years in jail and

that he may be ordered to be released for the sentence already

undergone by him. I have gone through the provisions of Section

20 of NDPS Act, which reads as under:-

"Section 20. Punishment for contravention in relation to

cannabis plant and cannabis.- Whoever, in contravention of

any provisions of this act or any rule or order made or condition

of licence granted there under:-

   (a)        cultivates any cannabis plant, or
   (b)        produces, manufactures, possesses, sells, purchases,

transports, imports inter-state or uses cannabis, shall be punishable-

(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees, and

(ii) where such contravention relates to sub-clause (b) :-

(a) and involves small quantity, with rigorous imprisonment for may be extended to ten thousand rupees, or with both;

(b) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;

(c) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and all also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees; Provided that the court may, for reasons to be recorded in the judgms.ent, impose a fine exceeding, two lakh rupees."

10. As per the provisions of Section 20 (b) (ii) (c) of the NDPS

Act, the minimum sentence which can be awarded is not less

than ten years and the minimum fine is Rs. one lakh. In the

present case, learned trial Court has convicted the appellant

under section 20 of the NDPS Act and sentenced him to undergo

RI for ten years and fine of Rs. one lakh. In my opinion the

learned trial Court has awarded the minimum sentence as

prescribed under the law. This sentence cannot be reduced by

this Court.

11. Keeping in view the above observations, I do not find any

merit in the appeal. The same is dismissed.

                                          S. L. BHAYANA, J
April     29, 2010