Delhi High Court
Ratnesh vs State on 11 August, 2017
$~R-6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 570/2012
% Judgment reserved on 11th July, 2017
Judgment pronounced on 11th August, 2017
RATNESH ..... Appellant
Through : Ms. Sunita Arora, Advocate.
Appellant produced from JC
versus
STATE ..... Respondent
Through : Ms. Aashaa Tiwari, APP for the
State with Inspector Rajesh
Kumar Bush and ASI Surender
Kumar.
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J.
1. The present appeal has been instituted under Section 374(2) of
the Code of Criminal Procedure against the impugned judgment dated
08.08.2011 and order on sentence dated 10.08.2011 by which the
appellant has been convicted for the offence under Section 20(b)(C) of
the Narcotic Drugs and Psychotropic Substances Act,1985 (hereinafter
referred to as „NDPS Act‟ ). The appellant has been sentenced to
undergo rigorous imprisonment for a period of 10 years with fine of
Rs.1 lakh, in default thereof to further undergo imprisonment for six
months.
2. Before the rival submissions of the parties are considered, it is
appropriate to mention the facts of the prosecution, as has been
noticed by the learned Trial Court:
" On 12/09/2009 SI Anuj Nautiyal was patrolling
in the area and who reached at Central bridge , NDRS
at 12.05 pm where he met HC Davis, HC Jagdish and
Ct. Gyanender also patrolling in the area. They all
started patrolling together and reached at platform no.
1 toward nizzamuddin side where they saw accused
coming with 2 trolly bags. On seeing the police party,
accused is alleged to have turned back and walked at
fast pace. Thus on suspicion he was apprehended by SI
Anuj Nautiyal with accompanying staff at about 12.30
pm.
It is alleged that 2 trolly bags in possession of
the accused were found containing Ganja and
information to this effect was given by SI Anuj Nautiyal
to the SHO. Total Ganja in the 2 bags was founded to
be 22 kg. Separate sample was drawn from Ganja in
each bag, they were marked and sealed in separate
pullandas. Remaining ganja was kept as it is in the
respective trolly bags and were also sealed in the
pullandas and pullandas were formally seized.
FIR was registered on the basis of rukka
prepared by SI Anuj Nautiyal and investigation was
assigned to ASI Ashok Kumar who reached at the spot
and completed the proceedings including formal arrest
of the accused. Samples were sent to FSL for opinion
during investigation and after completion of
investigation charge-sheet was filed in the court."
3. The prosecution has examined 11 witnesses, in all. The
statement of the appellant was recorded under Section 313 of the Code
of Criminal Procedure wherein the appellant stated that on 12.09.2009
he was returning from Bhubaneshwar by Rajdhani train and did not
carry any trolly bags with him. He denied recovery of any Ganja from
his possession. The appellant claimed he was innocent and had been
falsely implicated in the present case.
4. Ms. Sunita Arora, learned counsel for the appellant has
contended that the order of the Special Judge, NDPS, is bad in law as
the Special Judge failed to appreciate the substantial difference in the
weight of the samples sent by the prosecution to FSL and the weight
mentioned in the FSL report; that as per the definition of ganja the
seeds and leaves of the same are to be excluded and thus from the
discrepancies in the weight of samples as also the exclusion of seeds,
it is clear that the prosecution has not established its case beyond
reasonable doubt; that there are contradictions in the statement of
prosecution witnesses PW2, PW7, PW9, PW10 pertaining to search,
seizure and arrest of the appellant; that no DD entry was made
regarding the weight, scale and sealing material; that no independent
witness had joined the proceedings even though the spot was over
crowded during the day; that there was a delay of 12 days in sending
the sample to FSL; that the prosecution has not conducted any
investigation to ascertain the origin of contraband; that as the
prosecution has not proved its case beyond reasonable doubt, the
appellant deserves to be acquitted.
5. To substantiate her arguments, learned counsel for the appellant
relied upon the judgments titled Suresh Kumar Vs. State (Govt. of
NCT of Delhi) (Crl Appeal No. 767/2011) decided by this Court on
25.02.2016, Upender Singh Vs State (Crl Appeal No. 267 of 2012)
decided by this Court on 29.07.2015 to show that the discrepancies in
the contraband recovered (exclusion of seeds) give rise to the benefit
of doubt to the accused whereby the substantive sentence of the
appellant was modified, Ram Prakash Vs State (Crl Appeal No. 1363
of 2014) decided by this Court on 10.12.2014, Jarnail Singh Vs State
of Punjab: 2008 (4) RCR (Criminal) 294, Rajesh Kumar @ Sanjay
Vs State of NCT Delhi (2014) 0 Supreme Court (Del) 39186 to show
that the case of the prosecution could not be said to have been proved
without reasonable doubt and the appellant was acquitted of the
offence under Section 20 of the NDPS Act.
6. Contrarily, Ms. Aashaa Tiwari, learned APP for the State
submitted that Ganja was found in possession of the appellant which
is prohibited under the NDPS Act; that all the four police witnesses
have deposed consistently pertaining to the recovery of two trolly bags
containing Ganja; that the testimony of police witnesses cannot be
discarded merely on the ground that no independent witnesses
corroborated the same.
7. I have heard learned counsel for both the parties and have also
perused the material available on record.
8. The learned Special Judge, NDPS convicted the appellant under
Section 20(b)(C) of NDPS Act for being in possession of 22 kgs of
Ganja which is the commercial quantity. Section 20(b)(C) of the
NDPS Act reads as under:
"(b) produces, manufactures, possesses, sells,
purchases, transports, imports inter-State, exports
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 a term which may extend to six
months, or with fine, which may extend 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
shall 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 judgment, impose a fine exceeding two
lakh rupees."
Testimonies of Prosecution witnesses
9. At this stage, it is relevant to examine the statements of PW7
HC Jagdish Prashad, PW8 ASI Ashok Kumar, PW9 Ct. Gyanender
Kumar, PW10 SI Anuj Nautiyal. PW7 Jagdish Prashad testified as
under:
"On 12.09.2009 I was posted at PS NDRS. On that day
I along with HC Davis and Ct. Gyanender was on
patrolling duty in that area. At about 12.05pm we were
present Central Foot-over bridge of New Delhi
Railway Station. Meanwhile SI Anuj Nautiyal came
there and joined us in the patrolling. Thereafter we
went on platform no.1 towards Nizamuddin side. We
saw a person coming with two trolly bags from
Nizamuddin side. On seeing the police party the said
person turned and started retreating. On suspicion SI
Anuj Nautiyal stopped him. The said person is present
in the Court today (Witness has correctly identified the
accused persons Ratnesh). Accused was asked about
his unusual behavior. He remained silent. Both the
trolly bags were opened and searched. Both the trolly
bags contained Ganja wrapped in Panni. SI Anuj
Nautiyal informed SHO on the wireless. SHO
expressed his inability to reach at the spot and directed
to take further action under NDPS Act.
xxxxx
SI Anuj sent Ct. Gyanender to bring the scale and the
weight Ct. Gyanender brought the same. The contents
of both the trolly bags i.e. the Ganja was taken out and
weighed with the help of weight and scale brought by
Ct. Gyanender. The weight of Ganja recovered from
one trolly bag was 12 kg and the weight of Ganja
recovered from second trolly bag was 10 kg. One kg of
Ganja was taken out as sample from each trolly bag.
These samples were kept in two separate white
polythene bags and converted into pulandas. Seal of
„AN‟ was applied on both these pulandas. The
remaining Ganjas were kept in a respective trolly bags
and made into separate pulandas. Both the trolly bags
pulandas were also sealed with the seal of „AN‟. The
sample pulanda was given marks S-1 and S-2. The
remaining Ganja in trolly bag pulanda were given
serial no.A-1 (remnant 11 kg Ganja) and A-2 (remnant
9 kg Ganja). Form FSL was filled at the spot. Seal of
„AN‟ was applied on it."
10. PW8 ASI Ashok Kumar testified that:
"At this stage MHC(M) has produced a sealed pulanda
A-1 bearing seals of the court (seals intact). The
pulanda is opened by breaking the seals which
contains a grayish black color trolly bag bearing tag of
"BHARAT BAG HOUSE. The trolly bag opened by
opening the zip. It contains brownish dry vegetative
type contents (dried stems, leaves, flowering parts).
Witness identified that the contents was ganja which
was recovered from the p[possession from the accused.
The ganja along with the trolly bag pulanada A1 is Ex.
P-1 (already exhibited).
At this stage MHC(M) has produced a sealed pulanda
A-2 bearing seals of Court(seal intact). The pulanda is
opened by breaking the seal which contains a a blue
black color trolly bag with words "LOOKS"
embroided on it bearing tag of "MODI BAG" the
trolly bag opened by opening the zip. It contains
brownish, dry vegetative contents (dried stems, small
twigs, leaves flowering parts) witness identified the
contents of the trolly bag as ganja which was
recovered from thew possession of the accused. The
ganja along with this trolly bag pulanda A2 is Ex. P-3
(already exhibited)..."
11. PW8 in his cross examination stated :
" ...It is correct that there are offices of the railway at
the platform. It is correct that none official from any of
the office was asked to join the investigation.
xxxxxx
The weighing scale was made of iron. The contents of
the trolly bag BHARAT was weighed two times by
using weight of 5 kg and once by using the weight of 2
kg. The Ganja was first taken out from the bag and
then it was weighed and thereafter the sample was
taken out. In the same manner the Ganja recovered
from other bag was first taken out and then weighed by
using 5 kg weight twice and then sample was taken out
from this Ganja.
I do not remember the total number of ÁN‟seal
put on the parcels. No addition or alteration was done
by SI Anuj Nautiyal after preparing the seizure memo.
ASI Ashok Kumar came with me at the spot. I do not
remember at what time SI Anuj Nautiyal left the spo.
The statement of SI Anuj Nautiyal was got recorded by
ASI Ashok Kumar at the spot. SI Anuj Nautiyal asked
few public persons but non accepted. No notice was
served to those public persons. ASI Ashok Kumar did
not ask any person to join the investigation..."
12. PW9 Ct. Gyanender Kumar deposed that:
" On 12.09.2009 I was posted at PS NDRS as
Constable. On that day I was on patrolling duty with
HC Davis and HC Jagdish and at about 12.05 pm we
were present at Central Footover bridge, NDRS. At
that time SI Anuj Nautiyal met us and joined the
patrolling. When we were going on platform no.1
towards Nizamuddin side we saw a person coming with
two trolly bags. After seeing the police party he started
retreating. Upon suspicion he was apprehended. That
person is today present in the court. (Witness has
correctly identified the accused). After making enquiry
both the bags were checked by opening them. Both the
bags were containing the Ganja. SI Anuj Nautiyal
conveyed the information on wireless to SHO. After
receiving the directions Si Anuj Nautiyal started the
proceedings. I went to the police station NDRS and
brought weight and scale. The scale was having two
panes and the weights were of denomination 5kg, 2kg
and 1kg. after about 15-20 minutes I came back at the
spot.
On the one bag BHARAT BAG was written. The Ganja
recovered from this bag was weighed. The weight was
12kg. a sample of 1 kg was taken out and was kept in
the white polythene. It was converted into a clean cloth
parcel and was marked S-1. The remaining Ganja was
again kept in same trolly bag and was also converted
into a cloth parcel and was mark A-1.
The other trolly bag was of blue and black colour on
which LOOKS BAG was written. Upon weighing the
total weight of Ganja was 10kg out of which 1kg was
taken as sample. The sample Ganja was kept in white
polythene and was converted into a parcel and was
given mark S-2. The remaining Ganja was again kept
in same trolly bag and was converted into a parcel and
was given marks A-2. Form FSL was filled. Seal of
„AN‟ was applied on each cloth parcel and form FSL.
Seal was given to HC Davis. All the sealed parcels and
form FSL were seized vide memo Ex. PW-2/B ( already
exhibited) bearing my signature at point Z. SI Anuj
Nautiyal prepared rukka....."
13. PW10 SI Anuj Nautiyal in his examination-in-Chief deposed as
under:
"On 12.09.2009, I was posted at P.S. NDRS at Sub Ins.
On that day at about 12.05pm, I came to Central foot
over bridge during my patrolling vide DD No.14-A
Mark A. At Central foot over bridge HC Davis and HC
Jagdish met me along with Cons. Gyanender.
Thereafter, we all started patrolling. When we were
going on platform no.1 towards Nizamuddin side we
saw a person coming with two trolly bags. After seeing
the police party he started retreating. Upon suspicion
he was apprehended. That person is today present in
the Court. (Witness has correctly identified the
accused). After making enquiry both the bags were
checked by opening them. Both the bags were
containing the Ganja. I after confirming the substance
to be ganja conveyed the information on wireless to
SHO.
xxxxxx
On the one bag BHARAT BAG was written. The
Ganja recovered from this bag was weighed. The
weight was 12 kg. A sample of 1 kg was taken out and
was kept in the white polythene. It was conveyed into a
cloth parcel and was marked S-1. The remaining
Ganja was again kept in same trolly bag and was also
converted into a cloth parcel and was given mark A-1.
The other trolly bag was of blue and black colour on
which LOOKS BAG was written. Upon weighing the
total weight of Ganja was 10 kg out of which 1 kg was
taken as sample. The sample Ganja was kept in white
polythene and was converted into a parcel and was
given mark S-2. The remaining Ganja was again kept
in same trolly bag and was converted into a parcel and
was given mark A-2. Form FSL was filled. Seal of „AN‟
was applied on each cloth parcel and form FSL. Seal
was given to HC Davis...."
FSL Report
14. Two parcels in connection with FIR No. 292/09 dated 12.09.09
under Section 20/61/85 of the NDPS Act were received in the office
on 22.09.2009 through HC Prem Raj No. 386/Crime. At this juncture,
it is pertinent to reproduce the FSL report Ex PX-1, which reads as
under:
"DESCRIPTION OF ARTICLES CONTAINED
IN THE PARCEL(S)/EXHIBIT(S)
Parcels-'S1' & 'S2': Two (02) cloth parcels, sealed
with the seals of „CRM‟(04,03) & „A.N‟(05, 07)
respectively. These were found to contain exhibits
„S1‟ & „S2‟ respectively, each kept in a transparent
polythene separately.
Exhibits-„S1‟ & „S2‟: Greenish-brown coloured,
vegetative material stated to be „Ganja‟, weight
(approx.) 975.0 g & 925.0 g with polythene
respectively."
RESULTS OF EXAMINATION
(i) The sample(s) „S1‟& „S2‟ were examined by
chemical tests and chromatography methods.
(ii)On chemical tests and chromatographic
analysis gave positive results for cannabinoids
including Tetrahydrocannabinol in exhibits
'S1'& 'S2'
(iii)Biological examination report in original is also
enclosed."
15. On careful analysis of the unswerving testimonies and the FSL
report, it is abundantly clear that on 12.09.2009 the appellant came
with two trolly bags at Platform no.1 towards Nizamuddin side. After
seeing the police he started retreating and thus, upon suspicion, he was
apprehended by the police. After making enquiry, both the bags were
checked and Ganja was found in the same. The Ganja recovered from
the bags was weighed; one bag contained 12 kg Ganja, out of which a
sample of 1 kg was taken out and was kept in the white polythene. The
other bag contained 10 kg Ganja, out of which 1 kg was taken as
sample to be sent for FSL. At about 3.15 pm, the rukka was given to
PW8 who went to the Police Station and handed over the rukka to the
Duty Officer and produced all the sealed parcels, FSL form and copy
of seizure memo to the SHO C.R Meena. As per the FSL report, the
sample gave positive opinion and thus after the completion of
investigation, chargesheet was filed.
16. The argument of the counsel for the appellant that there was an
unusual delay of 12 days in sending the samples to CFSL would not
by itself be a ground to believe that the samples were tampered with
during its storage in the malkhana or while the samples were in
custody of the person who took the samples to CFSL from the
malkhana. PW11 HC Davis stated that on 12.09.2009, 4 sealed
pullandas alongwith FSL form and carbon copy of seizure memo were
deposited by Inspector C.R. Meena, SHO PS New Delhi Railway
Station. PW-6 Inspector C.R Meena testified that PW9 Ct. Gyanender
Kumar came to his office and handed over all sealed parcels bearing
the seals of „ÁN‟ alongwith FSL form and copy of seizure memo. He
stated that he had affixed seal of „ÇRM‟ on each parcel and form FSL
and mentioned the FIR number on them. He stated that he handed over
all the sealed parcels along with connected documents to MHC (M)
who made an entry in Register No.19 in this regard which was signed
by him and he lodged no. 20-A. All the pulandas were sealed with the
seals of ÄN"& "CRM" and same impressions were there on FSL
form. PW2 had handed over to PW3 two sealed pullandas bearing
seals of „AN‟ and „CRM‟ for depositing at FSL which were deposited
by PW3 at FSL against acknowledgment which he handed over to
PW2. The above statements are corroborated by the FSL result which
states two sealed pullandas marked as S-1 and S-2 were received at
FSL, Rohini on 22.09.09 through PW3 with the seals intact and tallied
with specimen seals.
17. Moreover, PW7, PW8 and PW10 identified the contents of S-1
which contained a white polythene bag containing brownish, dry
vegetative type contents (dried stems, small twigs, leaves, flowering
parts) as the sample of ganja which was taken from the trolly bag
containing 12 kg of ganja. They also identified the contents of S-2 as
the sample of ganja which was taken from the trolly bag containing 10
kg of ganja.
18. The contention of the learned counsel for the appellant that no
independent witness had joined the proceedings even though the spot
was over crowded during the day cannot be accepted. In the case of
Ram Murthi vs. State (NCT of Delhi) in Crl. Appeal No. 382/2007
decided On: 11.08.2009 it was held:
"12....I may observe here that merely because the
case of recovery of contraband in this case is based
upon the sole testimony of the police witnesses it does
not make the testimony inadmissible in evidence since
this is a case of chance recovery and therefore putting
to accused about the source and its distribution is not
material while seizing the Contrabands. Reference in
this regard can be made to a judgment delivered by
this Court in Criminal Appeal No. 394/2007, Ram
Swaroop v. State (GNCT) of Delhi decided on
04.05.2009. Reference can also be made to a judgment
delivered by Apex Court in Abdul Majid Abdul Hak
Ansari v. State of Gujrat 2003 (10) SCC 198."
19. In view of the above law and keeping in mind that the present
case involves chance recovery, the prosecution relied upon the
testimonies of police witnesses. The perusal of the testimonies of the
police witnesses are convincing and credible and thus cannot be
inadmissible in evidence. Learned counsel for the appellant also
submitted that the prosecution has not conducted any investigation to
ascertain the origin of contraband, however this submission has no
force as Section 20(b) of the NDPS Act indicates that mere possession
of the contraband is prohibited under the NDPS Act.
20. As far as the next contention made by the learned counsel for
the appellant that there is a substantial difference in the weight of the
samples sent by the prosecution to FSL and the weight mentioned in
the FSL report; that the contraband recovered from the appellant does
not fulfill the criteria of the Section 20(b)(ii)(C) of the NDPS Act is
concerned, it is appropriate to comprehend the term ganja as defined
under Section 2 (iii)(b) of the NDPS Act which is as follows:
"xxxxx
ganja, that is, the flowering or fruiting tops of the
cannabis plant (excluding the seeds and leaves
when not accompanied by the tops), by whatever
name they may be known or designated;..."
21. Ás per the report of FSL Ex PX-2, it shows that in Exhibit `S1‟
approximately 800 gms with polythene of dried greenish brownish
flowery vegetative material along with seeds described as Ganja was
found and in Exhibit „S2‟approximately 750 gms with polythene of
dried greenish brownish flowery vegetative material along with seeds
described as ganja was found.
22. It is the case of the prosecution that when the ganja was
recovered from the bags, the same were weighed. One bag contained
12 kg ganja, out of which a sample of 1 kg was taken out and was
kept in the white polythene. The other bag contained 10 kg ganja, out
of which 1 kg was taken as sample to be sent for FSL. However, as
per the FSL report, Exhibit „S1‟ contained approximately 800 gms
(with polythene) of dried greenish brownish flowery vegetative
material along with seeds and Exhibit „S2‟ contained approximately
750 gms (with polythene) of dried greenish brownish flowery
vegetative material along with seeds. It is relevant to mention here that
the definition of Ganja as defined in the Act explicitly shows that
Ganja would be the flowering or fruiting tops of the cannabis plant
which excludes seeds and leaves when not accompanied by the tops.
The report of FSL clearly states that what has been received in the
FSL for examination includes dried greenish brownish flowery
vegetative material along with seeds. Thus, as seeds do not come
within the ambit of the definition of „Ganja‟ the same have to be
excluded.
23. From the perusal of the statements of witnesses pertaining
mainly to the quantity of ganja recovered and also the FSL report, it is
clear that there was a substantial discrepancy in each of the samples
which had been received by FSL. The weight of the contraband
recovered was not precise. At this juncture, it is relevant to state that if
the discrepancy in what is alleged to have been recovered from the
appellant and what was ultimately found if the quantity is less than 20
kgs, the appellant would fall within the mid-bracket and would be
convicted under Section 20(b) (ii) (B) of NDPS Act.
24. The evidence adduced in the present case shows that the
contraband also included seeds which are, in fact, excluded from the
definition of ganja and thus the benefit of the same ought to have been
given to the appellant. At the best, the appellant is convicted for being
in possession of mid-quantity of ganja which would entail his
conviction under Section 20(b) (ii) (B) of the NDPS Act for which the
punishment prescribed is lesser.
25. As per the nominal roll, the appellant has undergone sentence of
about seven years and nine months. In view of the same, the
appellant‟s conviction is modified to Section 20(b)(ii)(B) of NDPS
Act in which there is no minimum sentence. Therefore, the substantive
sentence of the appellant is modified to seven years and six months
and fine of Rs.50,000/- in default thereof, to undergo imprisonment of
three months.
26. The appeal stands disposed of accordingly with the aforesaid
modification.
27. The appellant be informed of the order through Superintendent
Jail.
28. Trial Court record be sent back forthwith along with a copy of
this judgment.
SANGITA DHINGRA SEHGAL, J.
AUGUST 11, 2017
gr//
