Kiran vs State
2015 Latest Caselaw 7891 Del

$~R-88

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment reserved on : 05.10.2015
                                    Judgment delivered on : 14.10.2015

+      CRL.A. 858/2013

       KIRAN                                         ..... Appellant

                      Through       Mr.Sharad Malhotra, Amicus Curiae.

                           versus

       STATE                                         ..... Respondent

                      Through       Ms.Meenakshi Dahiya, APP.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

on sentence dated 04.4.2013 wherein the appellant had been convicted

under Section 21(C) of the Narcotic and Psychotropic Substances Act,

1985 (NDPS Act) and had been sentenced to undergo RI for a period of

10 years and to pay a fine of Rs.1,00,000/- in default of payment of fine

to undergo SI for 6 months. Benefit of Section 428 of the Cr.P.C. had

been granted to the appellant. The nominal roll of the appellant has

been requisitioned. This reflects that, as on date he has undergone

incarceration of 2 years 7 months and 28 days.

2 Version of the prosecution is that pursuant to a secret information

that a lady by the name of Kiran who used to sell smack was to bring

smack from one lady named Rama through street no.4, Bagichi Allaudin

between 8.15 a.m. to 9.15 a.m. on 16.11.2011 a raiding party was

constituted. ASI Devinder Singh (PW-8) along with Head Constable

Charan Singh (PW-7) and Lady Constable Janita Meena (PW-9) reached

the spot. On the pointing out by the secret informer the appellant was

apprehended. The raiding party introduced themselves to the appellant.

She was informed that she was required to be searched as the raiding

party suspected her to be carrying contraband. Prior to that a notice

under Section 50 of the NDPS Act (PW-7/A) was served upon the

appellant. She was informed that she has a legal right to get her search

conducted either before a Gazetted Officer or before a Magistrate. She

declined this option. On her search 270 grams of smack was found from

her possession. It was weighed. The contraband when tested with a

field testing kit tested positive for smack. Out of the 270 grams, two

samples of 5 grams each were drawn. The samples as also the

remaining contraband were seized and sealed with the seal impression of

DS; FSL form was also prepared at the spot. After the use of the seal,

the same was handed over to PW-9. The case property, the samples and

FSL form were deposited in the Malkhana through Inspector Vivek

Pathak (PW-3). The MHCM Head Constable, Jag Narain was examined

as PW-1. After depositing the contraband and the samples in the

Malkhana, the sample parcel had been sent to FSL on 24.11.2011 vide

road certificate no.547/21 through Head Constable Jagdish Ram (PW-5).

The FSL vide its report Ex.PX had tested the drawn samples positive for

smack.

3 In the statement of the appellant recorded under Section 313

Cr.P.C. her claim was that she has been falsely implicated. In the

defense she had produced one witness who was examined as DW-1.

She was Sharda, the neighbour of the appellant and her version was to

the effect that the police had picked up the appellant from her grocery

store. This was pursuant to a dispute which had arisen between the

police party and the son and the daughter-in-law of the appellant whom

they had attempted to pick up.

4 On the basis of the aforenoted evidence collected by the

prosecution, while rejecting the evidence of the defense, the conviction

of the appellant stood founded and she was sentenced as aforenoted.

5 On behalf of the appellant learned counsel for the appellant has

made his submission. It is pointed out that the secret information was

not transmitted to the senior officer and as such the mandate of

Section 42 of the NDPS Act was not complied with. Further submission

being that even as per the prosecution the appellant used to sell smack

but there was no search conducted of her house from where the alleged

recovery could have been made. The source Rama from whom she had

allegedly procured this smack has neither been arrayed as an accused

nor as a witness. The case is concocted. The contraband which was

recovered was about 270 grams but the percentage of Diacetylmorphine

was only 2.32% and as such the conviction of the appellant for a

commercial quantity is ill-founded. Learned counsel for the appellant

also submits that there is no explanation as to why public persons had

not been joined. There was no sincere effort made and to substantiate

this argument he has placed on reliance upon 2009(5) AD (Delhi)

Sehdev Vs. State, 2006(12) SCC 321 Ritesh Chakarvarti Vs. State of

Madhya Pradesh, 2015 (219) DLT 271 Mohd. Masoom Vs. State of

NCT of Delhi and 1997 CRLJ 4611 State of Punjab Vs. Om Prakash

Appellant is entitled to a benefit of doubt.

6      Arguments have been refuted.

7      Recorded has been perused and the submissions and counter

submissions have been appreciated. The members of the raiding party

had been examined are PW-7, PW-8 and PW-9. The secret information

had been received by PW-8. He had deposed that at about 6.30 a.m. on

16.11.2011 he had received a secret information at the Narcotics Cell of

Crime Branch that a lady by the name of Kiran who sells smack would

in between 8.15. a.m. to 9.15 a.m. bring smack from a lady by the name

of Rama for the purposes of sale. This information was passed on to

Inspector Vivek Pathak (PW-3). The secret information had been

reduced into writing vide DD No.5. This DD has been proved as

Ex.PW-3/A. PW-8 has reiterated that the secret information was passed

on to PW-3. No cross-examination has been effected of this witness on

this score. Version of PW-8 is corroborated by the version of PW-3.

He has also deposed that the secret information recorded in Ex.PW-3/A

was received by him through PW-8 and after receipt of the same by him

he had forwarded it to the concerned ACP. It was on the direction of

PW-3 that the raiding party was constituted. Mandate of Sections 42(1)

and 42(2) of the NDPS Act stood complied with. The first argument of

the learned counsel for the appellant has no merit.

8 Testimony of the members of the raiding party has been

appreciated. PW-8 had received the secret information and on the

direction of PW-3 a raiding party was constituted comprising of himself,

PW-7 and PW-9. All the aforenoted witnesses have categorically stated

that on the pointing out by the secret informer the appellant was

apprehended and before her search was conducted she was given a

notice under Section 50 of the NDPS Act (PW-7/A) informing her of her

legal right to have her search conducted either before a Gazetted Officer

or a Magistrate to which she declined. Her refusal has been recorded at

point P-P1 on Ex. PW-7/A. The contraband was weighed on an

electronic scale which weighed 270 grams. Two samples of 5 grams

each were drawn has also been deposed; the case property and the

samples as also the FSL form were deposited with PW-1. The entries in

the relevant Register i.e. Register no.19 had been proved in the version

of PW-1. The concerned entry i.e. the entry no.1412 has been proved in

Register No.14 as Ex.PW-1/A. Thereafter on 24.11.2011 the sample

parcel along with FSL form had been taken by PW-5 to the FSL. The

report of the FSL dated 20.12.2011 clearly describes that one sealed

parcel marked A with the seal intact and tallying with the specimen seal

along with the letter had been received in the department and when

tested, this sample was found to contain Diacetylmorphine; the

percentage of the Diacetylmorphine was found to be 2.32 %. The

submission of the learned counsel for the appellant that it is only the

purity content of the Diacetylmorphine which would be the determining

factor for conviction and the subsequent sentence of the appellant is

incorrect.

9 The Amending Act of 2001 had taken into account the sentence

procedure. The notification dated 18.11.2009 has been issued by the

Ministry of Finance in exercise of the powers conferred under Section 2

of the said Act by virtue of which the Central Government had issued

the said Notification. The earlier Notification dated 19.10.2001 stood

amended by this Notification and the language of this Notification with

clarity specifies that it is not the percentage of the drug which has to be

taken into account to determine as to whether it falls within the bracket

of a small or a commercial quantity but the entire mixture of the narcotic

drug/psychotropic substance and not its pure drug content alone to

return a finding as to whether the recovered contraband fall within the

bracket of a small quantity or a commercial quantity. The Notification

being published and having amended the earlier notification dated

19.10.2001 (relied upon in the judgment of AIR 2008 SC 1720 Michael

Raj Vs. Intelligence Officer, Narcotic Control Bureau), the submission

of the learned counsel for the appellant that the Trial Judge had

committed an illegality in relying upon this Notification and holding

that the drug recovered from the appellant was in the commercial

quantity is an argument noted to be rejected. The recovered contraband

which was 270 grams of smack was a commercial quantity haul. It

clearly specified that it is the entire drug and not itself the purity alone

which has to be taken into account to determine the quantity of the

contraband which was recovered. The recovery of 270 grams smack

falls within the bracket of commercial quantity. The conviction of the

appellant under Section 21(C) of the NDPS Act is not ill founded as is

the submission of the learned counsel for the appellant. It is a

commercial quantity.

10 The argument of the appellant that the house of the appellant was

not searched and Rama has not been examined is also an argument

bereft of any force as neither was Rama a necessary witness nor search

of the house of the appellant necessary in view of the secret information

that the appellant who used to sell smack would bring smack through

street no.4 Bagichi Allaudin, the appellant was apprehended and the

secret information proved to be correct. Non-examination of Rama and

non-search of the house of the appellant does not detract from the

otherwise well proved version of the prosecution.

11 On the count of joining of raid by the public persons, PW-7 has

cogently and coherently stated that efforts had been made to join public

persons but none had agreed. PW-8 had stated that when the appellant

had reached the corner of the street which was at about 8.30 a.m. she

was apprehended and the information was disclosed to her. Although

there was no specific deposition that he had asked public persons to join

the raid but the cross-examination effected of PW-8 shows that no such

question was put to him. Had it been put to him he may have given

explanation for non-joining of public persons. PW-7 on the other hand

categorically stated that 7-8 persons have been asked to join the raid.

Their names and parentage had not been recorded. He had reiterated

this position in his cross-examination. PW-9 the third member of the

raiding party in one part of his cross-examination had stated that

although there were houses in street no.4, the Investigating Officer did

not ask the persons from the houses to come and join the raid

proceedings. This part of the cross-examination of PW-9 has been

vehemently highlighted by the learned counsel for the appellant to

substantiate his argument that efforts to join public persons was not a

sincere effort. This Court is not in conformity with this submission of

the learned counsel for the appellant as PW-7 has categorically stated

that public persons were asked to join the raid but none agreed. It was

not the duty of PW-9 to go to the houses at street no.4 inviting them to

join the raid. This was in fact not the procedure to be adopted by the

Investigating Officer; it was only the passerby's or persons present at

the spot who could be asked to join the raid.

12 In view of the categorical version of PW-7 on this score that the

public persons had been asked to join the raid but none had agreed to do

so, it cannot be said that the efforts to join public persons was not a

sincere effort.

13 The defense of the appellant had been rightly rejected. DW-1 has

come into the witness box. She was a neighbor of the appellant. It was

for the first time in her version stated that the appellant has been falsely

implicated and the appellant had been picked up by the police officials

pursuant to a quarrel between the police officials and her son and

daughter-in-law. This was never a defense raised at the time of cross-

examination of the witnesses of the prosecution nor at the time when the

statement of the appellant was recorded under Section 313 Cr.P.C. It

was clearly for the reason that this was a belated defense which was

taken on a legal advice that it did not find any mention at the earlier

stages.

14 On no ground does the impugned judgment call for any

interference. The appellant has been granted the benefit of the minimum

sentence of RI 10 years having found to be in illegal possession of

narcotic drug. The fine amount is also the minimum.

15     The appeal is without any merit. Dismissed.



                                        INDERMEET KAUR, J

OCTOBER 14, 2015
ndn