IN THE COURT OF SH. [ENTITY] SESSIONS JUDGE (CENTRAL): DELHI [CASE NUMBER] FIR No.24/2013 PS Crime Branch U/[SECTION] of [ACT] State Versus Ms. [ENTITY], D/o Sh. [ENTITY], R/o H. No. 7028, Gali No. 3, Rameshwari Nehru Nagar, [ENTITY], Delhi. Accused Person Date of institution : 10.04.2013 Date of Judgment : 13.03.2014 J U D G M E N T
Present case pertains to recovery of 160 grams of heroin. Case of the prosecution is that on 13.02.2013, at about 9 am, secret information was received by SI [ENTITY] of Narcotics Cell, Shakapur against accused [ENTITY] regarding her expected arrival while carrying heroin, for its delivery to someone on the service road behind Liberty Cinema, in between 11 am - 11.30 am.
SI [ENTITY] produced the secret informer before Inspector [ENTITY] for his satisfaction regarding the secret information. Inspector communicated the information to ACP (Narcotics), who in turn issued directions for raid. That is how party consisting SI [ENTITY], lady [ENTITY], [ENTITY] and [ENTITY] left Narcotics Cell alongwith secret informer and reached the disclosed place i.e. the service road behind Liberty Cinema, at about 10.45 am.
It is case of prosecution that at about 11.25 am, Ms. [ENTITY], accused came from the side of [ENTITY] on foot. Secret informer identified her from a distance and then went away.
Accused waited for sometime for someone on the service road and then started returning. At that time, she was apprehended with the aid of lady constable.
SI [ENTITY] introduced himself to the accused. He apprised her of legal right under [SECTION] of the [ACT] (hereinafter referred to as "the Act"). She was also offered search of the members of the raiding party and that of the government vehicle.
Accused refused to exercise legal right or to conduct personal search of the members of the raiding party and that of the government vehicle. Her refusal was recorded.
It is case of the prosecution that effort was made to associate persons from the public, but no one came forward. The accused was then subjected to search by the lady constable in the government vehicle, which led to recovery of one black colour polythene and from this polythene heroin contained in a transparent polythene from her was recovered. Heroin, when weighed with transparent polythene was found to be 160 grams.
Two samples each of 5 grams were separated from the lot, turned into two separate parcels and sealed by SI [ENTITY] separately. Remaining quantity of heroin turned into third parcel was also sealed. FSL form was filled in. Impression of the seal using in sealing the parcels was affixed on this form. After use, seal was handed over to lady [ENTITY].
Case property, FSL form and carbon copy of seizure memo were then sent to Police Station, Crime Branch through [ENTITY], while sending the [ENTITY].
On having reached Police Station, Crime Branch, [ENTITY] handed over the [ENTITY] to the Duty Officer, who in turn got this case registered. [ENTITY] produced case property, FSL Form and carbon copy of seizure memo before SHO Inspector [ENTITY], who affixed his seal bearing impression PSR on all the three parcels and its impression on the FSL form as well. He recorded FIR number on the three parcels and thereafter deposited the same with MHC(M) [ENTITY].
After registration of case, SI [ENTITY] reached the spot, arrested the accused and got her personal search conducted from lady [ENTITY]. Articles recovered from personal search of the accused included copy of notice under [SECTION] of the Act.
Accused made disclosure statement during interrogation. From the spot, accused was brought to the office of Narcotics Cell and produced before Inspector [ENTITY]. Report under [SECTION] of the Act prepared by SI [ENTITY] and SI [ENTITY] were forwarded by Inspector [ENTITY] to the office of ACP.
One of the sample parcel was got despatched to FSL on 18.02.2013 through [ENTITY]. On analysis of contents of the sample parcel, FSL report was prepared.
On completion of investigation, challan was put in court.
3. Copies of documents relied upon by the prosecution were supplied to the accused free of costs U/[SECTION] [ACT]
Charge
4. Prima facie case having been made out, charge for the offence under [SECTION] of the Act was framed against the accused on 22.04.2013. Accused pleaded not guilty and claimed trial. Thereupon, prosecution was called upon to lead evidence.
Prosecution Evidence
5. In order to prove its case prosecution examined, following witnesses: PW1 [ENTITY] To prove deposit of sample parcel, FSL form and other papers at FSL Rohini on 18.02.2013.
PW2 [ENTITY] To prove arrest and recovery of contraband.
PW3 Inspector [ENTITY], SHO To prove communication of the secret information, his satisfaction on inquiry from the secret informer and its communication to the office of ACP;
Issuance of directions to constitute raiding party; that he made inquiries from the accused on her production at Narcotics Cell, Shakarpur and forwarded reports under [SECTION] of the Act prepared by SI [ENTITY] and SI [ENTITY].
PW4 SI [ENTITY] Second Investigating Officer.
PW5 [ENTITY] To prove receipt of reports under [SECTION] of the Act PW6 Inspector [ENTITY] To prove sealing of the parcel, affixing of seal on FSL, recording of FIR Number on the parcel and deposit of case property and other documents with MHC(M) PW7 [ENTITY] To prove deposit of case property at malkhana in respect of this case PW8 SI [ENTITY] Who received secret information, headed raiding party, apprehended the accused, recovered contraband and conducted proceedings at the spot.
PW9 Women [ENTITY] Witness to arrest of accused and recovery of contraband PW10 [ENTITY] To prove recording of FIR Ex PW10/A, endorsement to [ENTITY] Ex PW10/B, recording of DD N.23 and 25 Ex PW10/C and Ex PW10/D. Statement of Accused
6. When examined U/[SECTION] [ACT] the accused denied all the incriminating circumstances appearing in evidence against him and claimed false implication.
Plea put forth by accused Ms. [ENTITY] is as under: "It was picked up by the police from my house by SI [ENTITY] and 45others at about 11 am. They inquired from me about my uncle [ENTITY]. I was alone at my house. They used rough language. I also retaliated verbally. Then they took me from my house to police station. My signatures were obtained by the police on some documents. Then I was falsely implicated. "
7. Arguments heard. File perused.
8. Learned Addl. P.P. has contended that from the statements of PW2 [ENTITY], PW8 and PW9 W[ENTITY], it stands proved that the accused was apprehended on 13.02.2013 in the area of [ENTITY], on the basis of secret information and when subjected to search by W[ENTITY], she was found in possession of 160 gms of heroin contained in polythene.
Learned Addl. P.P. further submitted that steps were taken to join persons from the public, but no one came forward, and as such nonjoining of independent person does not affect the case of prosecution, particularly when three witnesses have fully supported the case of arrest and recovery. Further, it has been submitted that statements of police officials cannot be rejected outrightly simply because of their official status.
Learned Addl. P.P. has submitted that steps were taken to rule out possibility by tampering with case property and on analysis of contents of the sample it transpired that the same was heroin. So it has been urged that accused deserves to be convicted.
Secret Information
9. Learned defence counsel opened arguments by submitting that there are contradictions in statements of police official as to secret information received. The contention is that these contradictions create doubt if any such secret information was actually received by SI [ENTITY].
It has also been contended that according to PW9 [ENTITY], SI [ENTITY] had apprised ACP from the spot, but the SI nowhere stated to have so informed any ACP, and this fact also creates doubt in the version narrated by the two witnesses.
It is case of prosecution that secret information was received by SI [ENTITY] on the same day, at about 9.00 a.m., when he was present at Narcotics Cell.
As to the contents of the secret information, PW8 SI [ENTITY] has stated that the secret informer informed him that one lady, namely, [ENTITY], R/o Tank Road, [ENTITY], Delhi, involved in supply of heroin in whole sale or retail in the area of Delhi, would come on that day between 11.00 a.m. to 11.30 a.m., on service road, behind Liberty Cinema and if raid was conducted, she could be apprehended. According to SI [ENTITY], he produced the secret informer before Inspector [ENTITY] of Narcotic Cell at his office and after the Inspector made inquiries from the secret informer and satisfied himself he communicated the information to ACP [ENTITY], Narcotic Cell, telephonically, at his residence. Not only this, SI [ENTITY] recorded the secret information in DD no.18, copy whereof is Ex.PW3/A. DD no.18 was produced before Inspector Narcotic Cell in compliance with provisions of [SECTION] of the Act.
Ex.PW5/B is the copy of DD no.18 submitted by SI [ENTITY] to Inspector Narcotic Cell. Carbon copy thereof is Ex.PW3/A. A perusal of Ex.PW3/A would reveal that it was recorded by SI [ENTITY] at Narcotic Cell, Shakarpur, on 13.02.2013, at 9.30 a.m., regarding receipt of secret information at 9.00 a.m. from secret informer who himself visited Narcotic Cell and met the SubInspector. Its perusal would further reveal that SI [ENTITY] has narrated all the contents of the secret information disclosed to him on that day. The fact that secret informer was produced before Inspector Narcotic Cell through [ENTITY] at about 9.15 a.m.; that the Inspector satisfied himself and communicated the information to ACP [ENTITY] on phone at his residence also find mention in it.
It stands proved from the statements of SI [ENTITY], PW9 W[ENTITY] [ENTITY] and PW2 [ENTITY] that the former briefed the other members of the party about the contents of secret information and that is how, raiding party was constituted. As is available from the contents of Ex.PW5/B, i.e. copy of DD no.18, there was no secret information as to whom the contraband was to be supplied. When PW9 lady [ENTITY] stated in her cross examination that SI [ENTITY] did not disclose the description of the person who was expected to come and take delivery, the version narrated by the prosecution witness cannot be doubted. Simply because in her cross examination, the witness stated that SI [ENTITY] had informed the ACP, does not adversely affect the case of prosecution.
Therefore this court does not find any merit in the contention raised by learned defence counsel that the prosecution version regarding receipt of secret information is not believable.
Nonjoining of witness from the public
10. Learned defence counsel then contended that this is a case where despite ample opportunity, no independent witness was called from the shops and Liberty Cinema situated nearby.
Learned defence counsel has pointed out contradictions in the statements of PW2, PW8 and PW9 on the point of efforts made to join persons on way to the spot as well as at the spot, and submitted that these contradictions create doubt in the prosecution version if actually any effort was made to associate presence from the public.
Learned defence counsel has referred to decision in [PRECEDENT], wherein Hon'ble Judge of our own Hon'ble High Court observed that failure of Investigating Officer to join witnesses from the public assumed significance having regard to the discussion therein.
Further, it has been contended that in absence of corroboration from independent source, no reliance should be placed on the statement of police officials particularly when there are material contradictions in their statements.
On the point of effort made by PW8 SI [ENTITY] to join persons from the public before reaching the spot, according to him, on the way he requested four persons from the public near LNJP Hospital and five persons near Jhandewalan. On reaching the spot, he asked five persons from the public to join the party, but none agreed to join.
PW2 [ENTITY], another member of the party has made statement in line with the statement of SI [ENTITY] by stating that on their way SI [ENTITY] had asked four persons in front of LNJP Hospital and 45 persons at Jhandewalan crossing. Further according to him, 67 persons were asked by the Sub Inspector to join the party, but none of them came forward.
It is case of prosecution that with a view to join persons from the public, SI [ENTITY] first of all stopped the government vehicle near LNJP Hospital and then near Jhandewalan Mandir. According to PW2 [ENTITY], after having made efforts for two minutes, SI [ENTITY] did not tell them as to why the persons from the public had refused to join.
Learned defence counsel, while referring to aforesaid statement of PW2 submitted that this goes to show that only SI [ENTITY] had alighted form the vehicle, but this stands contradicted by PW9 wherein she stated that she, [ENTITY] and [ENTITY] were standing by the side of SI [ENTITY] at the time he requested the passersby to join the party, near LNJP Hospital and in the area of Jhandewalan Temple. The contention is that this contradiction creates doubt in the prosecution version regarding efforts made to join persons from the public.
Even if, SI [ENTITY] stated in cross examination to have alighted from the government gypsy at LNJP Hospital and in the area of Jhandewalan to join persons from the public whereas according to PW9 W[ENTITY], she, [ENTITY] and [ENTITY] were standing by his side at that time, it cannot be said to be a material contradiction in their statements. The fact remains that at LNJP Hospital and in the area of Jhandewalan temple, efforts were made by the SubInspector to join persons form the public, but no one came forward.
As regards efforts made by SI [ENTITY] at the spot, it is in his statement that after service of notice U/[SECTION] and refusal made by accused, he requested 67 persons from the public, who gathered at the spot, to join the proceedings, but none agreed and that it was thereafter that the lady Constable conducted personal search of the accused in the government vehicle.
As regards nonjoining of witnesses from the public from near the spot, SI [ENTITY] admitted in his cross examination about existence of shops on [ENTITY] Road and that he did not call any person from those shops. Having regard to the time of arrest of the accused and that shops were there nearby, SI [ENTITY] should have called someone from those shops but admittedly he did not join anyone from those shops.
On the point of nonjoining of independent witnesses, in the case of [PRECEDENT], Hon'ble Apex Court observed as under: "The submission that the evidence of the official witnesses cannot be relied upon as their testimony has not been corroborated by any independent witness cannot be accepted. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. It may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."
Taking into consideration that SI [ENTITY] did not call anyone from shops situated nearby and the decision in [PRECEDENT]'s case (supra), this court proceeds to evaluate the evidence of the official witnesses with more care and caution.
Apprehension of the Accused
11. It is case of the prosecution that the accused was seen coming from the side of [ENTITY]. Secret informer pointed out towards her and then left. According to PW8 SI [ENTITY], the accused stopped at a distance of about 10 meters from the corner of the service road, waited for someone for 35 minutes and then started returning. When she reached near the corner, she was apprehended with the help of lady [ENTITY].
Learned defence counsel has referred to the statements of PW8 SI [ENTITY] and PW9 Lady [ENTITY] and submitted that there is contradiction in the statements "as to the place" where the accused came and stop.
According to PW8 SI [ENTITY], accused stopped at a distance of about 10 meters from the corner of the service road, waited for someone for 35 minutes and then started returning. When she reached near the corner, she was apprehended with the help of lady [ENTITY].
According to PW9 lady [ENTITY], the accused came from the side of [ENTITY], stopped at a distance of 1020 meters from them, waited for someone for about 34 minutes and then started moving. Thereupon, she and SI [ENTITY] apprehended the accused.
According to PW2 [ENTITY], the accused came and stopped at a distance of 10 meters from them on a service road, waited for someone for 34 minutes and when she started returning, SI [ENTITY] and lady [ENTITY] apprehended her.
Rough site plan Ex PW4/D lends corroboration to the version narrated by three PWs as it depicts point 'A' as the place where the accused was apprehended.
This Court does not find any contradiction in the statements of three prosecution witnesses, namely PW2, PW8 and PW9.
From the evidence led by prosecution, it stands established that the raiding party reached the turning of service road situated behind Liberty Cinema; that IO SI [ENTITY], the secret informer and lady [ENTITY] took positions at the corner of the service road whereas other members took position on the other side of the service road; that the lady came to the service road stopped at a short distance at its corner, waited for someone and when she started returning and reached the corner, she was apprehended.
Service of notice under [SECTION] of the Act
12. According to SI [ENTITY], he apprised the accused of secret information available with him and against her. He also introduced himself to the accused. Then he apprised her of her legal right to be got subjected to search in presence of Gazetted Officer or Magistrate. She was also offered search of person of members of the party and that of the government vehicle. According to SI [ENTITY], even meaning of expression "Gazetted Officer" and "Magistrate" was explained to her.
SI [ENTITY] has proved notice under Ex PW2/A served upon the accused. According to him, its contents were read over by him to the accused. Accused refused to exercise her legal right vide refusal Ex PW2/B. PW2 [ENTITY] another member of the party has also deposed regarding arrival of the accused at the spot and that SI [ENTITY] served notice under [SECTION] of the Act upon her by delivering its copy while apprising her that any Gazetted officer or Magistrate could be called for the purpose of her search but she refused to exercise this right. PW2 has also proved his attestation at point A on this notice as well as on the refusal Ex PW2/B. PW9 Lady [ENTITY], another member of the party has deposed in line with the statements of PW2 and PW9 regarding service of notice under [SECTION] of the Act upon the accused and proved her attestation at point C on the original notice Ex PW2/A. According to her, copy of notice was delivered to the accused. It is further in her statement that accused was offered to be subjected to search in presence of Gazetted Officer and Magistrate but she refused and in this regard SI [ENTITY] recorded her refusal Ex PW2/B. This original notice under [SECTION] of the Act bears attestation of lady constable [ENTITY] and [ENTITY]. It was prepared by SI [ENTITY].
Three PWs named above have supported the prosecution version by narrating the contents of the notice vide which the accused was apprised of her legal right of being subjected to search in presence of Gazetted Officer or Magistrate. Refusal Ex PW2/B also bears attestation of the aforesaid two attesting witnesses.
Recovery of Contraband
13. It is case of the prosecution that after service of notice under [SECTION] of the Act and refusal by the accused to be got subjected to personal search in presence of any Gazetted Officer or Magistrate, the accused was subjected to search.
According to PW8 SI [ENTITY], the accused was subjected to personal search by the lady constable in the government vehicle, which led to recovery of one black colour polythene and from this polythene heroin contained in a transparent polythene was recovered. Heroin, when weighed with transparent polythene was found to be 160 grams.
Two samples, each of 5 grams were separate from the lot, turned into two separated parcels and sealed by SI [ENTITY] separately. Remaining quantity of heroin turned into third parcel was also sealed. FSL form was filled in. Impression of the seal using in sealing the parcels was affixed on this form. After use, seal was handed over to lady [ENTITY].
The other two witnesses to the recovery namely PW2 [ENTITY] and PW9 Lady [ENTITY] have made statements in line with statement of SI [ENTITY] on the point of recovery of contraband, drawing of two samples, sealing of the sample parcels and the third parcel containing the residue. They have also deposed about filling of FSL form, sealing of the three parcels, affixing of impression of seal on the FSL form.
They have also deposed about delivery of seal by SI [ENTITY] to Lady [ENTITY], after use, at the spot.
SI [ENTITY] has proved seizure memo Ex PW2/C prepared by him at the spot regarding seizure of the case property. PW2 [ENTITY] and PW9 Lady [ENTITY] have proved their attestation on the seizure memo Ex PW2/C. Learned defence counsel has submitted that lady [ENTITY] could not search person of the accused. This contention raised by learned defence counsel is without any merit. SI [ENTITY] was the investigating officer. On his directions, the lady [ENTITY] conducted search of person of the accused as required under the law and this led to recovery of the contraband.
In the course of arguments learned defence counsel has not advanced any argument on the point of contradiction in the statements of the three witnesses on the point of drawing of samples, sealing thereof and sealing of the third parcel containing the residue as well as seizure of the case property vide memo Ex PW2/C. Drawing of samples
14. As regards drawing of sample, learned defence counsel has pointed out contradiction in the statements of PW8 and PW9 and submitted that this contradiction being material in nature, creates a dent in the prosecution story.
As noticed above, two samples each of 5 grams were separated from lot, given Mark A & B and sealed by SI [ENTITY] with his seal. Third parcel was given Mark C containing residue. It was also sealed by SI [ENTITY] with his seal.
From the statements of PW2, PW8 and PW9, this version of the prosecution stands duly proved.
A perusal of memo Ex PW2/A would reveal the manner in which the samples were prepared, then all the three parcels including parcel containing the residue were sealed, impression of the seal used by SI [ENTITY]. Fact of affixing of impression of the seal used by SI [ENTITY] also stands recorded in this document. It also finds mention in this document that after use SI [ENTITY] handed over the seal to Lady [ENTITY].
It is true that PW9 Lady [ENTITY] stated in her cross examination that quantity of the sample was weighed and then put in transparent polythene but she could not tell as to whether any instrument was used in picking up 5 grams quantity of sample from the lot. It is true that PW8 SI [ENTITY] stated in his cross examination that before the sample quantity was taken out of the lot, a polythene was placed on the weighing scale and when scale showed digit '0' on account of pressing tare button.
But, simply, because PW9 did not state that a polythene was firstly placed on the weighing scale and when the scale showed digit '0' on pressing button, quantity to serve as sample, was taken out from lot, it cannot be said that samples were not drawn in her presence.
Learned Counsel should have specifically questioned PW9 as if any polythene was placed on the weighing scale before quantity was picked up from the lot to serve as sample. Since no specific question was put, the two witnesses cannot be said to be in contradiction with each other as to the manner in which the samples were drawn.
It stands proved from the statements of all the three witnesses i.e. PW2, PW8 and PW9 that two samples, each of 5 grams were drawn from lot and that electronic scale was used in weighing the contraband and the quantity of the sample. Therefore, this Court does not find any merit in the contention raised by learned defence counsel as to the manner in which samples were drawn.
Dispatch of [ENTITY]
15. Learned defence counsel has pointed out that as regards [ENTITY] PW2 [ENTITY] and PW9 W[ENTITY] are in contradiction with each other, as according to PW9 W[ENTITY], [ENTITY] was prepared by SI [ENTITY] but according to PW2 [ENTITY], it was reduced into writing on the dictation of SI [ENTITY].
As per prosecution version, [ENTITY] Ex PW8/B was prepared by SI [ENTITY] then handed over to [ENTITY], who took the same to police station while taking alongwith case property, FSL form and carbon copy of seizure memo.
According to PW8 SI [ENTITY], [ENTITY] Ex PW8/B was prepared by him. PW9 Lady constable [ENTITY] also stated about preparation by SI [ENTITY]. Simple because PW2 stated to have dictated to [ENTITY] to [ENTITY], it cannot be said to be in contradiction.
Learned defence did not question PW9 Lady [ENTITY] if SI [ENTITY] himself prepared [ENTITY] or dictated the same to someone else. Had he so questioned, the witness would have replied thereto. The fact remains that according to her, [ENTITY] was prepared by SI [ENTITY]. Therefore, there is no merit in this contention raised by learned defence counsel.
Preparation of arrest memo, personal search memo and recording of statement of PW9 W[ENTITY] [ENTITY]
16. As regards preparation of arrest memo, personal search memo and recording of statement of PW9 W[ENTITY] [ENTITY], learned defence counsel has pointed out that her statement is not in consonance with the prosecution version as to the stage of preparation of memos, which further goes to show that she was not present on the given date, time and place.
After registration of the case PW4 SI [ENTITY] reached the spot. On his arrival at the spot, SI [ENTITY] produced before him documents and also handed over custody of the accused while narrating him the sequence of events. According to SI [ENTITY], he prepared rough site plan Ex PW4/B of the place of arrest and recovery. He then interrogated the accused, arrested her vide memo Ex PW4/C and got her subjected to personal search from lady [ENTITY] in the government vehicle.
Personal search of the accused led to recovery of copy of notice under [SECTION] of the Act and cash worth Rs.650/. SI [ENTITY] has proved arrest memo Ex PW4/C and personal search memo Ex PW4/D. PW8 SI [ENTITY] has supported the prosecution version as to the steps taken by SI [ENTITY] on his arrival at the spot. He has proved his attestation on arrest memo Ex PW4/C and personal search memo Ex PW4/D. PW9 lady [ENTITY] has also deposed about arrest of the accused and conducting of personal search on the directions of SI [ENTITY]. She has also proved her attestation on the personal search Ex PW4/D. Learned defence counsel has pointed out that in her cross examination. PW9 lady [ENTITY] stated that her statement was recorded by second IO SI [ENTITY] from 7.15 pm to 8.45 pm. Then, reference has been made to the arrest memo Ex PW4/C which depicts the time of arrest of the accused as 9 pm. The contention is that in view of the time of arrest of the accused as available in the arrest memo, it is not believable that statement recorded by SI [ENTITY] of PW9 lady [ENTITY] [ENTITY] was recorded from 7.15 pm to 8.45 pm. It is true that in her cross examination that PW9 stated about recording of her statement by the second IO from 7.15pm to 8.45 pm and the time of arrest as available in the arrest memo is 9 pm, but the same does not create doubt in the version of the prosecution as to the sequence in which the proceedings were conducted by SI [ENTITY]. While appearing in Court as PW4 SI [ENTITY] narrated the manner in which he conducted the proceedings.
SI [ENTITY] was not questioned as to at what time he recorded statement of lady [ENTITY]. Furthermore, PW8 SI [ENTITY] clearly stated regarding arrival of SI [ENTITY] at the spot at about 7.15 pm and PW4 [ENTITY] stated in his cross examination to have departed from the spot at about 9.30 pm. This goes to show that statement of PW9 Lady [ENTITY] was recorded by SI [ENTITY] at the spot.
Having regard to the consistent statements of prosecution witnesses, this Court does not find any merit in the contention of learned defence counsel that statement made by lady [ENTITY] [ENTITY] is not in consonance with the prosecution version regarding as to the stage or time of preparation of arrest memo and personal search memo.
Although learned defence counsel has referred to the statement of Lady [ENTITY] where she displayed ignorance on some point, the same do not go to create doubt regarding her presence on the given date, time and place of the arrest of accused and recovery from her.
As regards supplier and prospective receiver
17. Learned defence counsel has referred to the evidence led by the prosecution and pointed out that there are contradictions in the statements of PW8 and PW9 as to the contents of the disclosure made by the accused. Further it has been pointed out that no effort was made by SI [ENTITY] or the second Investigating Officer to catch hold of person known as [ENTITY], alleged supplier of the contraband. Even no effort was made to collect evidence or to catch hold of prospective receiver.
The contention is that in absence of investigation in this regard creates doubt in the version of prosecution that any such contraband was supplied by any such person, namely, [ENTITY] to the accused or that she was going to supply the same to anyone.
In view of the aforesaid arguments, learned defence counsel has contended that when prosecution has miserably failed to substantiate accusation levelled against her the accused is entitled to acquittal.
Case of the prosecution is that on arrival SI [ENTITY] and interrogation made by him, accused made disclosure statement Ex PW4/E. No new fact could be discovered in pursuance of this disclosure statement. Therefore the disclosure statement attributed to the accused is inadmissible. That is why, prosecution has not relied on the disclosure statement. Even if the supplier of the contraband or the perspective receiver thereof could not be apprehended, it does not adversely affect the case of prosecution on the point of recovery of contraband from the accused.
Compliance with provisions of [SECTION] of the Act
18. It has been contended by learned defence counsel that in this case, the case property was not deposited in the nearest police station as such this is a case of noncompliance with provisions of [SECTION] of the Act.
It has come in prosecution evidence that the case property came to be deposited by PW5 Inspector [ENTITY] at Police Station Crime Branch after the same was delivered to him on the same day at 3.50 pm by [ENTITY], alongwith FSL form and copy of seizure memo. This version finds corroboration from the statement of PW7 [ENTITY], who has proved Ex PW7/A, Ex PW7/B, Ex PW7/C and the notes A to A, B to B and C to C recorded in entries Ex PW7/A and Ex PW7/B. There is nothing on record to suggest that the case property was required to be deposited in the malkhana of any other police.
From the evidence led by the prosecution, it stands established that investigating officers took all steps to rule out tampering with the case property. Not only this, the sample parcel reached FSL Rohini on 18.02.2013 that is without delay and with seals intact as is available from FSL report Ex PW4/G. As opined by the Sr. Scientific Officer (Chemistry) the contents of the sample contained Diacetylmorphine, 6Monoacetylmorphine, Phenobarbital, Caffeine and Paracetamol. This report establishes that the accused was found in possession of heroin.
Compliance with provisions of [SECTION] of the Act
19. Prosecution has proved on record report Ex PW5/D prepared by SI [ENTITY] and report Ex PW5/E prepared by SI [ENTITY], submitted to the Inspector. PW3 Inspector [ENTITY] has deposed about forwarding of these two reports to the office of ACP. PW5 [ENTITY] has proved receipt of the two report in the office of ACP on 14.02.2013. So, this is a case of compliance of provisions with [SECTION] of the Act.
It is well settled that more serious the offence, the stricter the degree of proof. Herein, in view of the above discussion, this Court finds that prosecution has fully established its case beyond shadow of reasonable doubt.
Conclusion
20. In view of above discussion, this Court holds that prosecution has fully established its case that on 13.02.2013 when accused Ms. [ENTITY] was apprehended by the raiding party headed by SI [ENTITY] and was found in possession of 160 grams of heroin. Accordingly, she is held guilty of the offence under [SECTION] of [ACT] and convicted thereunder.
Let convict be heard on the point of sentence.
Announced in Open Court on 13.03.2014 ([ENTITY] ) Special Judge(NDPS) Delhi. IN THE COURT OF SH. [ENTITY] SESSIONS JUDGE (CENTRAL): DELHI PS Crime Branch
U/[SECTION] of [ACT] State Versus Ms. [ENTITY] Convict ORDER ON SENTENCE 13.03.2014 Present: Sh. [ENTITY], Addl. PP for State.
Convict with her father and counsel Sh. [ENTITY]. I have heard the convict, her father and counsel for convict on the point of sentence.
Convict, her father and learned counsel for convict pray for leniency submitting that the accused is an unmarried girl of 21 years of age without previous record of involvement in any such case.
On the other hand, learned Addl PP submits that having regard to the quantity of the contraband recovered from the accused and the ill effects of consumption of drugs in the society, the accusedconvict be sentenced with such sentence which deters other from indulging in same crime.
Vide judgment pronounced today, accusedconvict has been held guilty and convicted of the offence under [SECTION] of of [ACT] as she was found in possession of 160 grams of heroin.
Record does not reveal that she has ever been challaned for such crime. She is an unmarried girl of 21 years of age. She appears to have been used by someone as carrier of the contraband for its delivery to someone else. As per record she has remained in custody from 13.02.2013 to 29.04.2013. Having regard to all this, I hereby sentence the convict to Rigorous Imprisonment for 2 years and to pay fine of Rs.10,000/ or in default of payment of fine to undergo further Simple Imprisonment for one month, U/s 21
(b) of the Act.
The period of imprisonment already undergone during investigation, inquiry and trial to be set off against the period of sentence awarded vide this judgment.
Case property be destroyed in accordance with law on expiry of period for Appeal/Revision, if none is preferred or subject to decision thereof.
File be consigned to record room.
Announced in Open Court on 13.03.2014 ([ENTITY] ) Special Judge(Central) Delhi.