JODHA SAHANI Vs. STATE OF NCT OF DELHI

JUDGEMENT

(1.) The present appeal has been preferred against order dated 30th May, 2005 convicting the accused/appellant under Section 8 of NDPS Act punishable under Section 20(b)(ii)(c) of NDPS Act and order dated 2nd June, 2005 sentencing him to undergo imprisonment for period of 10 years and a fine of Rs.1 lac.

(2.) As per prosecution's case, on 17th April, 2003 a police patrolling party at about 6.05 pm saw the appellant going near baandh holding a gunny back in his hand. When the appellant looked at police party he got scared and quickly moved towards village Devali. This raised suspicion in the mind of police party and he was stopped by the police party and his gunny bag was checked. A substance like charas was found in the gunny bag. SI P.C.Yadav who was heading the police party told appellant that his personal search was to be taken and he served a notice under Section 50 NDPS Act (Exh. PW-4/A) upon the appellant. The appellant however did not ask for search in presence of a gazette officer and magistrate and his personal search was conducted. Nothing incriminating was found from personal search. The substance found in the gunny bag was weighed and found to be 8.5 kg. A message was sent to Police Station by SI P.C.Yadav and Inspector Nand Kishore reached the spot. A sample of 500 gm was taken from the substance in gunny bag and sealed with seal of PY. Form FSL was also prepared and the same seal was put on the form. Inspector Nand Kishore, who had reached the spot, also put his own seal of NK on the sample and on the form FSL. The remaining quantity of charas in gunny bag was sealed and taken to Police Station and deposited with malkhana. Sample charas (Exh. P1) was sent to the CFSL along with the form and the CFSL report confirmed that the substance was charas. The investigating officer had also sent a report under Section 57 NDPS to ACP Greater Kailash. The learned trial Court after considering the evidence and the documents came to the conclusion that the accused was found in possession of 8.5 kg of charas, a prohibited substance under NDPS Act and convicted the accused.

(3.) In the appeal, a plea has been taken that the provisions of Section 42 NDPS Act were not followed by the Investigating Officer. This plea has to be rejected since Section 42 NDPS Act was not applicable in this case as there was no prior intimation with the police party about the appellant carrying charas with him. Section 43 NDPS would be applicable in this case which relates to chance recovery and therefore procedure under Section 42 NDPS Act was not to be followed.