Full Text
Date of Decision: 04.04.2014 CRL. A.1021 of 2013
JAGIRO ..... Appellant
Through: Mr. Sunil Mehta & Mr. Raman Sahney, Advs.
Through: Mr. Feroz Khan Ghazi, APP.
JUDGMENT
On 4.4.2011, S.I. Alok Kumar of Police Station Nand Nagri was on patrol along with Head Constable Sita Ram and Constable Sonu. At about
6:40 p.m., he received a secret information that a woman, who would come from the side of DTC Depot, Nand Nagri and go towards Pratibha School, D-Block of Nand Nagri could be having illicit ganja with her. The information was conveyed by him to the SHO, Police Station Nand Nagri on telephone. The SHO having instructed him to take appropriate action, he called lady Constable Kavita to the spot and the raiding party reached
2014:DHC:1939 Pratibha School, D-Block and took positions there. 4-5 passers-by were requested to join the raiding party but as usual no one agreed to join the said party. At about 8:00 p.m., the appellant before this Court was seen coming from the side of DTC Depot carrying a white polythene bag in her hand.
She was apprehended on being identified by the secret informer. A notice under Section 50 of the NDPS Act was served on her informing her that it was her legal right to be searched in the presence of a Magistrate or a
Gazetted Officer. She having declined the said option, the bag which she was carrying with her was searched and was found to contain ganja kept in two (2) white polythene. On being weighed the ganja was found to be 2.8 kg. 200 grams of the substance was drawn as sample and the sample as well as the residual substance were sealed with the seal of AK. Form FSL was also filled at the spot and seal was handed over to Constable Sita Ram. In the meanwhile SHO, Police Station Nand Nagri also reached the spot. The sealed parcels were handed over to the SHO who left the spot, taking the said parcels with him. After completion of investigation the appellant was prosecuted under Section 20 of the NDPS Act.
2. Since the appellant pleaded not guilty to the charge as many as eleven (11) witnesses were examined by the prosecution. No witness was examined in defence.
3. S.I. Alok Kumar came in the witness box as PW11 and inter alia stated that on 4.4.2011, when he was on patrol, he met Head Constable Sita Ram and Constable Sonu near Tonga Stand, Nand Nagri. Thereafter at about 6:45 p.m. he received a secret information, from an informer, that a lady will come from DTC Depot side and go towards D-1 Block with ganja. The information was conveyed to the SHO, Police Station Nand Nagri and a lady Constable was called to the spot. He requested 4-5 persons to join the raiding party but all of them left the spot without disclosing their names and addresses. At about 8:00 p.m. they saw the accused Jagiro coming from DTC Depot side with a bag (katta) in her hand. On being identified by the secret informer, she was apprehended by lady Constable Kavita and her particulars were ascertained. She was apprised of the information which the police officers had with them and a notice under Section 50 of the NDPS Act Ex.PW1/F was served upon her. She, however, refused the offer by making an endorsement Ex.PW11/B on the notice itself. The white bag was then taken from her hand and when opened it was found to contain ganja. It was weighed on a manual scale and found to be 2.[8] kg. 200 grams of the substance was drawn as sample. The sample as well as the residual substance were sealed with the seal of AK and the same seal was affixed on Form FSL which was filled on the spot. The seal was handed over to Head Constable Sita Ram. In the meanwhile the SHO, Police Station Nand Nagri, Inspector Narender Singh Rana reached there and the sealed parcels were handed over to him. He affixed his own seal NSR on both of them as well as FSL Form.
4. PW[1] Constable Sonu, PW[2] Head Constable Sita Ram and PW[4] lady Constable Kavita have corroborated the deposition of PW11 S.I. Alok Kumar with respect to the appellant having been apprehended and ganja weighing 2.800 kg being recovered from her. They also corroborated with respect to the sealing the sample as well as the residual substance with the seal of AK and the sealed parcels having been handed over to Inspector Narender Singh Rana. HC Sita Ram also confirmed that the seal after use was handed over to him.
5. PW[8] Retired Inspector Narender Singh Rana deposed that on 4.4.2011, S.I. Alok Kumar had apprised him on telephone of the secret information regarding a lady Jagiro would pass through Nand Nagri Bus Depot on foot to supply ganja. He further stated that at about 9:00 p.m., he reached D-Block in front of Pratibha School, Nand Nagri where the aforesaid police officer were present. The accused was also present there. He further stated that two sealed parcels duly sealed with the seal of AK were handed over to him. He affixed his own seal NSR on both the parcels and returned to the police station. In the police station he called MHC(M) and handed over both the sealed parcels to him. A DD entry in this regard was also made by him which is Ex.PW8/A.
6. PW[5] S.I. Chaman Lal was working as SO to the ACP, Seema Puri on 5.4.2011. He inter alia stated that on the aforesaid date information under Section 57 of the NDPS Act, forwarded by the SHO, Police Station Nand Nagri was received in their office and was perused by the ACP Shri S.P. Gupta. The said report Ex.PW5/A bears signatures of S.P. Gupta at point „A‟. PW[7] Constable Tejpal is the police official who took the sample parcel sealed with the seals of AK and NSR along with FSL Form to FSL Rohini from MHC(M), Nand Nagri on 7.4.2011 and deposited the same with FSL. PW[9] Head Constable Manoj Kumar was posted as MHC(M) at Police Station Nand Nagri on 4.4.2011. He stated that on the aforesaid date Inspector Narender Singh Rana called him in his office along with register No.19. Two sealed parcels sealed with the FSL form duly sealed with the aforesaid seals along with carbon copy of the seizure memo were handed over to him. He made entry in this regard in register No.19 which is Ex.PW9/A. He further stated that on 7.4.2011, he handed over the sample parcels duly sealed with the aforesaid seals as well as FSL Form and other documents to Constable Tejpal.
7. In her statement under Section 313 of Cr.P.C., the appellant denied the allegations against her and claimed to be innocent.
8. Vide impugned judgement dated 19.7.2013, the appellant was convicted under Section 20b(ii)(B) of the NDPS Act and vide impugned Order on Sentence dated 25.7.2013, she was sentenced to undergo RI for four (4) years and to pay fine of Rs.10,000/- or to undergo RI for a period of three (3) months in default. Being aggrieved from her conviction and sentence, the appellant is before this Court by way of this appeal.
9. The impugned judgement has been assailed by the learned counsel for the appellant only on the ground that there was non-compliance of Section 42 of the NDPS Act. The contention of the learned counsel for the appellant is that though the secret information was received when the police officer were on patrolling, it was quite possible to reduce the said information into writing and send the same to the concerned SHO, instead of orally informing him on telephone.
10. In my view, since the ganja was recovered from a bag which the appellant was carrying at a public place, the provisions of section 42 of the Act would not apply and consequently it was not obligatory for SI Alok Kumar to reduce the information into writing before proceeding to the place where the appellant was later apprehended. A somewhat similar issue came up for consideration before this Court in Brijesh Kumar Gupta v Narcotics Control Bureau [Criminal Appeal No.1242/2010, decided on 3.4.2014.] and the following view was taken:
11. The learned counsel for the appellant relies upon Directorate of Revenue and another v Mohammed Nisar Holia [(2008) 2 SCC 370]. A perusal of the aforesaid judgment would show that in that case a secret information was received that one person staying in a room of a hotel was in possession of a fax copy of consignment note under which Mandrex tablets were being transported from Delhi to Mumbai. On searching, a sum of Rs.4. 25 lac in cash and a fax copy of the receipt showing sending of medicine was found. The consignment arrived at as per the said receipt within a couple of days. The High Court acquitted the accused on the ground that provisions of Section 42 of the NDPS Act had not been complied. Being aggrieved from the decision of the High Court, the Directorate of Revenue filed an appeal and contended that since the hotel was a public place within the meaning of Section 43 of the Act, it was not necessary to comply the provisions of Section 42. During the course of judgment, the Apex Court, inter alia, noted that the place which was sought to be searched being a room in a hotel, was not open to public though it was situated in a public place. However, in the case before this Court, ganja was recovered from a bag which the appellant was carrying at a place frequented by the members of the public, it being a public road. The room in a hotel, on the other hand, is not accessible to the members of the pubic despite the hotel being a public place. It is accessible only to the person staying in the room or to the hotel management. Therefore, the aforesaid decision would not be applicable to the factual situation prevailing in the case before this Court. In fact, in paras 21, 22 and 23 of the judgment, the Apex Court took note of its earlier decisions in Narayanaswamy Ravishankar (supra), Abdul Rashid Ibrahim Mansuri v. State of Gurajat, [2000) 2 SCC 513], Jarnail Singh (supra) and Major Singh and ors. (supra). Referring to Major Singh (supra), it was held that the said decision had no application in the case before it. Therefore, the decision in Mohammed Nisar Holia (supra), in my view does not help the appellant. In Rajinder Singh v State of Haryana [(2011) 8 SCC 130], another judgment relied upon by the learned counsel for the appellant, the information received by the police officer was that the appellant Rajinder Singh had kept some opium in the shed used for storing fodder in his farm house and opium was later recovered from the said fodder room. Since the fodder room in the farm house would either be building or a place it being enclosed with roof and walls, this judgment would not apply where the recovery is effected at a public place. In State of Karnataka v. Dondusa Namasa Baddi [JT 2010 (9) SC 444], the Court referring to the Constitutional Bench Decision in Karnail Singh v. State of Haryana [JT 2009(10) SC 360] found that sufficient time was available to record the information and send to the superior police officers. The judgment would have no applicability to a case where seizure is effected at a public place and not from a building, conveyance or place. In State of Rajasthan v. Shanti AIR 2010 43, the primary issue before the Apex Court was applicability of Section 50 of the Act to the search of the bag of the accused. It was held that the aforesaid case that the provision was not applicable to the search of a bag. However, in the para of the judgment, the Apex Court observed that there had been non-compliance with the requirement of Section 42(2) and that being so, there was no merit in the appeal filed by the State of Madhya Pradesh. Thus, in this case, the Court did not really examine the question as to whether Section 42 of the Act would have application in a case where the drug is seized at a public place, which is accessible to all the members of the public or not. In fact, the learned counsel for the appellant has not drawn my attention to any case where the Court took a view that wherever a prior information was received, it has to be reduced into writing irrespective of whether the information relates to the narcotic drug being available at a public place or it relates to such drug being available in a building, conveyance or place.
12. No argument on the merit of the case has been advanced. Even otherwise, considering that the testimony of PW11 SI Alok Kumar, which finds full corroboration of the deposition of PW[1] – Constable Sonu, PW[2] – HC Sitaram, PW[4] – Lady Constable Kavita, the recovery of ganja weighing 2.[8] kg from the possession of the appellant at a public place stands duly proved. The prosecution has also produced the relevant link evidence by examining PW[8] Insp. Narender Singh Rana who took the sealed parcels from PW11 – SI Alok Kumar on the spot, put his own seal on it and on reaching to the police station, deposited the parcels as well as the FSL form in the Malkhana. The prosecution has also examined MHC(M) HC Manoj Kumar and also produced the relevant entry made in Register No.19. PW[7] – Constable Tejpal who had taken the sample to FSL has also been examined. A perusal of report of FSL would show that the parcels containing samples were duly sealed with the seal of AK and NSR when it was received in the laboratory. The prosecution has thus ruled out any reasonable possibility of the samples being tampered with from the time, ganja was recovered till the time it was received in FSL. The conviction of the appellant, therefore, cannot be interfered with.
13. Coming to the sentence, though the appellant is a previous convict, admittedly she is a woman aged more than 74 years. On perusal of the impugned order on sentence would show that at the time of sentence, she was stated to be 73 years old. The learned counsel for the appellant has placed on record a copy of the voter identity card issued by the Election Commission, in which her age as on 1.1.2008 has been shown as 68 years, meaning thereby that she is more than 74 years old. The learned counsel also submits that the appellant is so heavy that she finds it difficult even to walk. Considering the fact that the quantity of ganja recovered from the appellant was an intermediate quantity and 1/8th of the commercial quantity, which is 20 kg, I am inclined to take a lenient view as far as substantive sentence awarded to the appellant is concerned. However, in that event, the fine imposed on her needs to be suitably enhanced. The counsel for the appellant submits that she cannot afford to pay a stiff fine, and therefore, the amount of fine may not be enhanced. In the facts and circumstances of the case, while enhancing the amount of fine from Rs.10,000/- to Rs.25,000/-, the period of substantive sentence awarded to the appellant is reduced to one and a half year. The appeal stands disposed of in above terms. One copy of this order be sent to the concerned Jail Superintendent for information and necessary action. Trial court record be sent back with a copy of this order.
APRIL 04, 2014 V.K. JAIN, J. b’nesh/rd