Irshad Ahmed vs State Nct Of Delhi
2015 Latest Caselaw 9232 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Judgment reserved on : 03.12.2015
                           Judgment delivered on : 11.12.2015

+      CRL.A. 390/2013
       IRSHAD AHMED
                                                        ..... Appellant
                           Through     Mr. Pramod Kumar Dubey,
                                       Advocate

                           versus

       STATE NCT OF DELHI
                                                         ..... Respondent
                           Through     Ms. Kusum Dhalla, APP for the
                                       State with SI Karamveer Singh

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

of sentence dated 05.12.2012 wherein the appellant stands convicted

under Section 20 of the NDPS Act. He has been sentenced to undergo

RI for a period of 10 years and to pay a fine of Rs.1 lac and in default of

payment of fine, to undergo SI for one year.

2 Nominal roll of the appellant has been requisitioned. This reflects

that as on date he has undergone incarceration of about almost 4 years &

4 months.

3 The version of the prosecution as unfolded discloses that on

26.07.2011 at about 09:10 AM, SI Paramjeet Singh (PW-9) posted at the

Narcotic Department received a secret information that the appellant

who was a supplier of charas would be coming to Delhi. He would reach

the Yamuna Bazar bus stand opposite Nigam Bodh Ghat between 10:30

to 11:00 AM for supply of charas. This information was shared by PW-9

with Inspector Kuldeep Singh (PW-4). ACP Bir Singh was informed. A

raiding party was constituted comprising of PW-9, HC Subhash Singh

(PW-10) and HC Sanjeev Kumar (PW-3). They reached the spot. At the

pointing out by the secret informer, the appellant was apprehended. The

raiding team introduced themselves to the appellant. He was informed

that he had a right to get his search conducted either before a Magistrate

or before a Gazetted Officer. Notice under Section 50 of the NDPS Act

(Ex. PW-3/A & B) was served upon him. He refused the option and in

lieu thereof, he has fixed his thumb impression at point 'Z'. From the

search of the accused, the bag which he was carrying was found to

contain a polythene which contained pieces of black solid material

which when tested with the field testing kit found positive for charas.

The material was weighed. It weighed 3 kgs and 400 gms. Two separate

samples of 50 gms each were drawn from the contraband. The case

property and the samples were seized and sealed with the seal of SHO

CRM. The FSL form was filled in at the spot. The case property was

deposited with HC Jag Narain (PW-2), the then MHCM of PS Crime

Branch. The sample parcels along with FSL form was taken by

constable Satpal (PW-6) to the FSL, Rohini. The report of the FSL (Ex.

PW-8/G) had tested the sample positive for charas.

4 In the statement of the accused recorded under Section 313 of the

Cr.PC, he pleaded innocence stating that he has been falsely implicated

and no recovery was made from him.

5      No evidence was led in defence.

6      Learned counsel for the appellant submits that no log book entry

was made by the raiding party at the time of leaving the Crime Branch.

The driver who was driving the vehicle and was part of the raiding party

was not examined. The sample which had been sent for analysis

weighed 50 gms but as per the report of the FSL, the sample which was

analyzed was 50.67 gms. The difference in the weight remained

unexplained. The public witnesses were also not joined for which there

is no explanation. Benefit of doubt must accrue in favour of the

appellant.

7 Needless to state that these arguments have been refuted.

8 The members of the raiding party have been examined as PW-9,

PW-10 and PW-3. PW-9 on oath deposed that on the fateful day after

receipt of a secret information which he had shared with PW-4, a raiding

party was constituted. DD No. 14 (Ex.PW-4/A) was lodged pursuant to

which the raiding party was constituted and vide DD No. 15 (Ex.PW-

9/A), the official vehicle driven by constable Rajender was taken to the

spot. Public persons were specifically asked to join the raid but none

agreed. PW-9 had categorically stated that 5-6 persons had been asked

but they had shown their dis-agreement. Before the search of the

appellant was conducted, a notice under Section 50 of the NDPS

(Ex.PW-3/A & B) was served upon the appellant wherein he had

declined to get his search conducted either before the Magistrate or

before the Gazetted Officer; he had put this thumb impression at point

'Z'. The contraband which was recovered was tested with the field

testing kit. It weighed 3kgs and 400 gms inclusive of polythene. Two

separate samples marked 'A' and 'B' from the contraband were drawn

which were sent to the FSL. In his cross-examination, the witness stuck

to his stand. He was not dis-credited. He categorically stated that all

efforts to join the public persons were made but they failed.

9 Testimony of PW-9 was fully corroborated by the version of

PW-10 who was the another member of the raiding party. He also

deposed on the same lines. He deposed that they had reached the spot at

10:30 am wherein 5-6 persons were asked to join the raid but they had

not agreed. From the search of the appellant, the contraband as

described by PW-9 was recovered which was seized and sealed.

10 This witness was also cross-examined but his testimony could not

be discredited.

11 The next member of the raiding party was PW-3 who has also

withstood the test of being a credible and cogent witness. He has also

categorically deposed that inspite of efforts made to join public persons,

none had agreed.

12 From this aforesaid evidence, it is clear that at the time of

departure, entry in the log book was made. The vehicle which was taken

for the use in the raid was duly entered into vide separate DD. PW-9 had

exhibited both these DDs i.e. Ex.PW-4/A and Ex.PW-9/A. Defence of

the appellant that the log book entries were not made is thus negatived.

The driver who was driving the vehicle was not a necessary party as he

had not participated in the raid; he had only driven the vehicle to the

spot. His non-examination is thus of little relevance. The minor

difference in the weight of the samples is also not relevant as the

weighment of the contraband was done at the spot; it weighed 3 kgm

and 400 gms of which approximately 50 gms were drawn out as sample.

The FSL vide its report (Ex.PW-8/G) has tested the sample positive for

charas and the weight of the contraband was 50.67 gms which was

inclusive of the polythene; .67 gms is well attributable to the weight of

the polythene. There is no discrepancy in this report. Efforts to join

public persons were also made and it has come in the categorical version

of all the members of the raiding party who have all stated that inspite of

best efforts, none had agreed to join the raid. It is common knowledge

that the members of the public do not easily volunteer to join raids as

they know that the efforts involved are long drawn as even after the

investigation is over, they are called for evidence in Courts which is not

an easy task. This is largely the reason for non-joining of the public

persons.

13 Testimony of PW-3, PW-9 & PW-10 is cogent. It cannot be

discarded merely because members of the public did not join for the

reason as afore-described.

14 All other statutory compliances i.e. compliance under Section 42

and Section 50 of the NDPS Act have been made. In fact no other

argument except the arguments as noted supra (which have been

answered aforesaid) have been addressed.

15 The conviction of the appellant under Section 20 of the NDPS Act

who had been found to be in illegal possession of contraband calls for

no interference. The sentence which has been imposed upon him is also

the minimum. This also calls for no interference. Appeal is without any

merit. Dismissed.

INDERMEET KAUR, J

DECEMBER 11, 2015 A