Mohd. Sabir vs State
2015 Latest Caselaw 7713 Del

$~R-54-A

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment reserved on : 29.9.2015
                                Judgment delivered on : 08.10.2015

+      CRL.A. 230/2013
       MOHD. SABIR                                       ..... Appellant
                           Through     Mr. K. Singhal, Advocate.
                           versus

       STATE                                          ..... Respondent
                           Through     Mr. Kewal Singh Ahuja, APP for
                                       the State.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

on sentence dated 11.12.2012 and 22.12.2012 respectively wherein the

appellant stands convicted under Section 21 (C) of the Narcotics Drugs

and Psychotropic Substances Act (in short NDPS Act). He had 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 2 years.

2 The version of the prosecution is that on 15.11.2010, a secret

information was received by PW-10 (SI Sharat Kohli) which was to the

effect that one person by the name of Mohd. Sabir resident of Bijnour,

UP would be supplying smack in Delhi and UP and would be coming to

supply smack between 03:00 PM to 04:00 PM on a black coloured

Pulsar motorcycle. This information was reduced into writing vide DD

No. 10. A raiding team was constituted comprising of PW-10, HC Amit

Tomar (PW-1), constable Narender (PW-2) and constable Dabbu (PW-

6). At 03:40 pm, two persons riding on a motorcycle were apprehended

whose names were later on revealed as Mohd. Sabir (the appellant) and

Mohd. Nawaj Shareef. The appellant was carrying a black bag on his

right shoulder. Before conducting his search, a notice under Section 50

of the NDPS Act (Ex.PW-1/A) was served upon him informing him that

he has a right to get his search conducted either before a Magistrate or

before a Gazetted Officer. He declined the option. From this shoulder

bag, a transparent polythene containing a peach colour powder was

recovered. It was weighed. The weight was 872 gms. Two samples of

10 gms each marked A and B were taken. The remaining contraband

was put in a polythene and seized and sealed; so also the samples. The

case property was deposited with HC Jag Narayan (PW-5), the MHCM

of police station Crime Branch. These parcels were deposited through

Inspector Kuldeep Singh (PW-7). The sample parcels marked A were

then sent on 08.12.2010 through constable Vikas Rana (PW-8) to the

CFSL vide road certificate No. 428/21 (Ex.PW-5B). The CFSL had

tested the sample positive for smack.

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

Cr.PC, he had pleaded innocence. One witness was produced in defence.

He was Vishal Gaurav, Nodal Officer of Bharti Airtel Ltd. This was to

substantiate his submission that on the fateful date, the location of his

cell phone No. 9910441659 (which had been recovered from the

personal search vide his personal search memo) showed that he was not

in the vicinity of the area where the offence had occurred i.e. Japanese

Park, Rohini but his mobile had shown his location at Sector-11, Rohini

which is distant from the place of the alleged offence. The defence was

rejected.

4 On the basis of the aforenoted evidence collected by the

prosecution, the appellant was convicted and sentenced as aforenoted.

5 The foremost submission of the learned counsel for the appellant

is that the compliance of Section 42 of the NDPS Act has not been

effected and a mere recording of secret information in a DD is not

sufficient compliance of Section 42 of the NDPS Act. The second

submission is that the mandate of Section 57 has also not been complied

with. The senior officer to whom the report under Section 57 had

allegedly been sent was not examined for which there is no explanation.

There are inherent contradictions in the version of the prosecution. The

link evidence is missing. Possibility of tampering cannot be excluded.

6 Needless to state, these arguments have been refuted by the

learned Public Prosecutor for the State. His statement is that on no

count, does the impugned judgment call for any interference.

7 Arguments have been heard. Record has been perused.

8 The members of the raiding party have been examined as PW-1,

PW-2, PW-6 and PW-10. PW-1 has deposed that on the fateful day

pursuant to a secret information, he had constituted a raiding party

comprising of himself, PW-2, PW-6 and PW-10. The police party had

taken their positions at the spot. As per the secret information, a person

by the name of Mohd. Sabir, resident of Bihar would be coming to Delhi

between 03:00 PM to 04:00 PM to supply smack; he would be on a

Pulsar motorcycle. Near the Japanese Park at gate No. 3, the appellant

was apprehended. The police party introduced themselves to the

appellant. The appellant was carrying a shoulder bag. Notice under

Section 50 of the NDPS Act (Ex.PW-1/A) was served upon him before

conducting his search. During his search, a peach coloured powder was

recovered which was weighed and on weighing on the electronic scale,

it was found to be 872 gms from which two samples of 10 gms each

were drawn. The FSL Form was prepared at the spot. Inspector Arti

Sharma (PW-12) also reached the spot as investigation was thereafter

marked to her. This witness was subjected to a lengthy cross-

examination but nothing has been elicited which could discredit her

version.

9 The subsequent version of PW-2, PW-6 and PW-10 are also on

the same lines. In fact nothing has been pointed out by the learned

counsel for the appellant to dent their version; a mere bald submission

has been made, without any elaboration, that the version of the

witnesses of the prosecution is contradictory. This Court is not in

agreement with this submission as the versions of all the aforenoted

members of the raiding party were consistent.

10 Compliance of Section 42 of the NDPS Act also stands effected.

DD No. 10 was the secret information which had been reduced into

writing. PW-1 has categorically stated that on 15.11.2010 at 12:30 pm,

this secret information was received which was then conveyed to Sh.

Joy Tirkey, Additional DCP. This secret information had been reduced

into writing at about 01:00 pm by PW-10. This has been proved as

Ex.PW-3/D. PW-4 ASI Subhash Chand working as SO to Additional

DCP has proved DD No. 10 recorded vide diary No. 1415 as Ex.PW-

3/C. In view of the version of PW-10 and PW-4 it has been established

that compliance of Section 42 (1) and 42 (2) has been effected.

11 Section 57 also stood complied with. This is also clear from the

version of PW-10 and PW-4. PW-10 had deposed that on 15.11.2010, he

had prepared the report under Section 57 of the NDPS Act regarding the

seizure of 872 gms of smack (Ex.PW-4/A) which has been corroborated

in the version of PW-4 who had on oath deposed that this report under

Section 57 of the NDPS Act was received through PW-10 regarding the

seizure and was diaried as diary No. 1416. A second report under

Section 57 of the NDPS Act dated 16.11.2010 was sent through PW-12

(Inspector Arti Sharma) regarding the arrest of the accused and this

information was diaried by PW-4 in his diary vide diary No. 1427 and

was proved as Ex.PW-4/B. There was no cross-examination of these

witnesses on this aspect. Compliance of Section 57 of the NDPS Act

also stood effected.

12 The submission of the learned counsel for the appellant that the

link evidence was missing and there was possibility of tampering is also

negatived. PW-5 was the MHCM. He has deposed that on 15.11.2010,

PW-7 had deposited the case property with him which included three

sealed pulanda along with FSL form having the seals of SK and KSY.

An entry to this effect was made in Registry No. 19. This version of

PW-5 was corroborated by the version of PW-7. Further documentary

evidence which is Register No. 19 reflects that on 08.12.2010, PW-8

had taken the sealed pulanda to the CFSL. This version of PW-5 is again

corroborated by PW-8. Both of them have deposed that the sample

pulanda was intact with the seals. The CFSL in its report (Ex.PX) dated

05.01.2011 stated that the CFSL had received the pulanda in an intact

condition and the specimen seals tallied with the seals affixed on the

samples; the orange coloured powdery material had tested positive for

smack. The possibility of tampering was wholly excluded; the bald

submission that the link evidence was missing is also negatived as not

only the MHCM but the person who had taken the sample to the CFSL

was also examined. The link evidence was connected. This argument of

the learned counsel for the appellant is also without any merit.

13 The defence of the appellant produced through DW-1 had set up a

plea of alibi but was an afterthought. Even otherwise and even

presuming that the location of the appellant (as per his mobile) was at

Sector-11, Rohini which is hardly at a distance of about 1 kilometer

from the Japanese Park, Rohini and the range of the mobile tower being

wide could have encompassed the location at Sector-11, Rohini. The

place of apprehension i.e. the Japanese Park is in fact towards Sector-11,

Rohini and this has also come in the version of PW-10. This Court

further notes that this defence was not the defence of the appellant at the

time of cross-examination of the witnesses of the prosecution and nor

was this defence taken at the time when his statement under Section 313

of the Cr.PC was recorded. At the time of recording of his statement

under Section 313 of the Cr.P.C, his submission was that he had been

lifted from Shastri Park as his motorcycle had hit a car pursuant to

which a quarrel that had taken place. The defence, vacillating, was

rightly rejected.

14 On no count, does the impugned judgment call for any

interference. The appellant was found to be in illegal and unlawful

possession of commercial quantity of heroin for which he has rightly

been convicted under Section 21-C of the NDPS Act. The sentence

which has been imposed upon him is also of minimum of RI 10 years

and a fine of Rs.1 lac. The sentence also calls for no interference.

15     Appeal is without any merit. Dismissed.



                                        INDERMEET KAUR, J
OCTOBER 8, 2015
A