TaxTMI 
TaxTMI 
2016 (3) TMI 1495
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....n 28.02.2008 at about 2PM, a secret information was received by SI Satish Rana that two persons namely appellants Rajiv and Rajveer, both residents of Bamla Village, District Bhiwani, Haryana, who indulge in supply of charas alongwith their associates Sethi and Ramesh, in Delhi and Haryana would come near Ghevara Mor at the corner of the Indane Gas plant between 4:30 PM to 5PM to supply huge quantity of charas to someone. The secret informer was produced before the SHO Insp. M.C. Katoch and on the directions of the SHO, SI Satish Rana formed a raiding party consisting of himself, Constable Sanjeev, Head Constable Om Prakash, Head Constable Jagdish Prasad and Constable Praveen. Raid was conducted. Raiding party reached the spot at about 4:15 PM and at about 4:35 PM, both the appellants were seen coming towards the Gehwara Mor and were carrying plastic kattas on their right shoulders. Raid was conducted and both the appellants were apprehended. Mandatory provisions of NDPS Act were complied with. From possession of Accused Rajiv, 23 kg of charas was recovered and from possession of Accused Rajveer, 22 kg of charas was recovered. The required samples were taken and accused persons wer....
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....ledge the contradictions in the deposition of the witnesses regarding the test of the case property. On the one hand, PW1 has deposed that the test was conducted simultaneously whereas the ACP has stated that the test of samples was conducted one after the other. (v) Samples were not taken from all the sticks and therefore it cannot be said that all the sticks allegedly recovered were of charas. (vi) Recovery was done in an open space near Ghevara Mor which renders the application of Section 42 NDPS as inapplicable. The prosecution has failed to provide any explanation as to why no warrant or authorisation was issued before conducting the raid despite the fact that the high rank officials such as SHO and ACP were duly informed about the alleged incident. (vii) Despite police remand, the police failed to bring on record as to when the contraband was to be delivered. (viii) There were every chance of tampering with case property as sample was sent to FSL after eight days. 8. I have given my considerable thoughts to the grounds urged in the appeals and have perused the record. 9. PW4-SI Satish Rana was the SI at PS Narcotics Branch. On 28.02.2....
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..... Thereafter, separate notices u/s 50 NDPS were given to both the accused persons namely Rajveer and Rajiv vide Ex.PW1/A and Ex.PW1/B respectively. Both the accused persons recorded their refusal in their own handwriting vide Ex.PW1/C and Ex.PW1/D. Thereafter again PW4 requested four persons to join the investigation but all of them refused. At about 5:30 PM when he was about to take the search, PW7 ACP Mahender Singh arrived at the spot and was briefed by him about the facts. ACP Mahender Singh introduced himself to both the accused persons. Thereafter, PW4 took search of accused Rajeev and checked the yellow plastic colour katta which he was carrying. The mouth of the plastic was found tied with a black colour feeta. On the katta, Shri Churi chana was found printed in red ink. When he opened the mouth of the katta and checked it, he found 23 packets wrapped in brown colour tape. On removing the tape from the packets, dark brown colour cylindrical sticks in two layers were found inside a transparent polythene. On checking the brown colour substance from each packet with the field testing kit, it was found to be charas and on weighing it, each packet was found to be one kg. In tota....
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....re SHO. 11. The testimony of PW4 SI Satish Rana finds substantial corroboration from the testimony of PW1 HC Om Prakash, PW3 Constable Sanjeev Kumar, PW6 ACP M.C. Katoch, PW7 ACP Mahinder Singh and PW10 SI Bhagwan Singh. 12. The plea of the appellants that no effort was intentionally made by SI Satish Rana to join any independent persons from a stable place or there is no eye witness or public witness regarding the recovery of the contraband from the appellants which clearly casts a doubt on the prosecution version is without substance. It has come in the testimony of the police officials namely PW1 HC Om Prakash, PW3 Sanjeev Kumar, PW7 ACP Mahinder Singh and PW4 SI Satish Rana that PW4 made every effort to make public persons join the proceedings. SI Satish Rana initially asked four persons outside the PS to join the proceedings but they refused. Thereafter, when the raiding party was on the way, he asked four persons at ISBT, four persons outside Rohini Court complex and four persons at the spot to join but none of them agreed. Thereafter, before the search of the accused persons took place, he asked four more persons to join but they too refused to join the proceedings. It....
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....on them for arriving at any conclusion regarding the guilt of the accused. 14. In Ajmer Singh vs. State of Haryana, (2010) 3 SCC 746, Hon'ble Supreme Court observed: "16. The learned Counsel for the appellant has submitted that the evidence of the official witness cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned Counsel. It is clear from the testimony of the prosecution witnesses PW-3 Paramjit Singh Ahalwat, D.S.P., Pehowa, PW-4 Raja Ram, Head Constable and PW-5 Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. 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 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. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appe....
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....fficials for which they would be falsely implicated in this case. 17. Regarding the ground of inordinate delay in lodging the FIR as the appellants were apprehended between 4:30-5 PM on 28.02.2008 whereas the FIR was registered on 29.02.2008, the same is satisfactorily explained from the testimony of the police officials. It is clear from the testimony of prosecution witnesses and the evidence on record that the raiding party reached the spot at about 4:15 PM and took their positions. At about 4:35 PM, both the appellants were seen coming towards the spot. Thereafter, both the appellants were apprehended and at about 5:30 PM, when PW4 SI Satish Rana was about to take the search of the appellants, PW7 ACP Mahender Singh arrived at the spot and thereafter search was taken of both the appellants. Samples were prepared, FSL form was filled, case property was seized and rukka was prepared vide Ex.PW4/A. PW3 Constable Sanjeev thereafter left the spot with Constable Parveen at about 1:30 AM and reached the PS at about 3 AM after which he handed over the rukka to PW2 HC Ramesh Chand on the basis of which PW2 recorded the present FIR vide Ex.PW2/A. Therefore, the submission of delay in l....
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....lant Rajveer, 22 packets wrapped in a brown colour tape were found. The tapes were removed and dark brown colour cylindrical sticks in two layers were found inside the transparent polythene under the tape in 11 packets and in the rest 11 packets, four layers of dark brown colour slabs were found in transparent polythene under the tape. The brown colour substance from each packet were checked with the field testing kit and the same was found to be charas. On checking the weight of each packet, the same was found to be one kg. In total, 22 kgs of charas were found. From 11 packets, containing cylindrical charas, some charas were taken out from each packet and 2 samples of 100 gms each were prepared and reduced to two pullandas. From the other 11 packets of slabs containing charas, some charas were taken out from each packet and 2 samples of 100 gms each were prepared and reduced to two pullandas. It is clear that each packet found in the kattas of both the appellants were checked with the field testing kit and the same were found to be charas. Thereafter some charas was taken out from each packet and 2 samples of 100 gms were prepared. Therefore, it cannot be said that samples w....
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....han v State, Crl.A.755/2004 decided on 2.05.2008, this Court held: 13. As regards the argument that the requirement of Section 42 NDPS Act was not complied with since the secret information received on 15th January 2000 was not reduced to writing, the learned Counsel for the Respondent appears to be right that the applicable Section is Section 43 and not Section 42 since the search, arrest and seizure took place in a public place i.e. the roof of Palika Bazar car parking. Nevertheless the DD entry 21 (exhibit PW 12/A) and DD entry 29 (exhibit PW 12/D) show that the information received constitute sufficient compliance of reducing that information into writing. The decision in Narayanaswami Ravishankar v. Asst. Directorate of Revenue Intelligence 2003 CriL J27 applies on the facts of the present case. There the Court held (SCC pp. 8- 9): In the instant case, according to the documents on record and the evidence of the witnesses, the search and seizure took place at the Airport which is a public place. This being so, it is the provisions of Section 43 of the NDPS Act which would be applicable. Further, as Section 43 of the NDPS Act was not applicable in the present ....
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....h 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. Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees." 25. Appellants Rajiv Grewal and Rajveer were found in possession of 23kg and 22kg of charas and were convicted under Section 20(b) NDPS Act by the Learned Trial Court for being in possession of commercial quantity of charas. Therefore the question of where and to whom the same was to be delivered is irrelevant. 26. As regards last limb of ground of attack regarding possibility of tampering with case property having been sent after seven days of recovery, same is devoid of merit. It has come in the statement of PW4 SI Satish Rana that the samples as well as remaining contraband were sealed with the seal of '6APSNBDELHI'. Form FSL was filled in and on that also same seal was affixed. The sample pulanda, case property along with Form FSL were sent through PW3-Head Constable Sanjeev Kumar who produced the aforesaid articles before SHO Inspector M.C. Katoch ....