RAJINDER KUMAR ALIAS PAPPU Vs. STATE

JUDGEMENT

(1.) This appeal is directed against the judgement dated 17/08/2000 and order dated 19th August, 2000 of an Addl.Sessions Judge convicting the appellant under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the 'Act') and sentencing him to undergo RI for 10 years and pay a fine of Rs.1 lac. In default of payment of fine, the appellant is to further undergo Rl for one year. Case of the prosecution, in brief, is that on 22/06/1998 at about 11.40 AM, SI Joginder Singh received secret information that around 2.15 PM two boys possessing Opium/Smack - one having dark complexion and another wheatish complexion and both wearing pants of black colour, after alighting at Khazuri Khas bus stand would go to Jal Prakash Nagar via Yamuna Pushta. This information was recorded by SI Joginder Singh in the DD at serial No.10-A. Thereafter, he organized a raiding party and included therein SI Sanjay Sharma, HC Satyaveer Singh, Constables Birender Singh, Nawal Singh and Semat Kumar. All of them left for Yamuna Pushta road. Around 2.00 PM, nakabandi was made near Khazuri red light and in the meantime SHO Ranbir Singh reached there. It is alleged that at about 2.10 PM, two boys going from Khazuri bus stand towards Yamuna Pushta road were apprehended on the pointing out of informer One of them was the appellants He was holding polythene bag of black colour in his right hand. HP was apprised about the secret information by SI.Joginder Singh. In the meantime, ACP Chander Mohan, too reached there and he after making enquiry from the appellant, asked SI Joginder Singh to give notice to him under Section 50 of the Act. Appellant refused to be searched in the presence of a Gazette Officer or a Magistrate. Polythene bag hold by the appellant on checking was found to be containing powder which was suspected to be Smack. On weighing, substance was found to be 650 gms out of which 50 gms was separated as sample. Remaining and sample substance were converted into separate parcels and sealed. CFSL form was filled in. Both the parcels and CFSL form were deposited In malkhana. Sample parcel was sent to CFSL. Chandigarh for analysis. Result of analysis which had been received after the filing of charge sheet, indicates that sample contained Diacetylmorphine (heroin).

(2.) To bring home the charge under Section 21 of the Act, the prosecution. examined 9 witnesses In all. After scrutinizing the statements of PWs. as also the defence set up by the appellant in his statement under Section 313 Criminal Procedure Code he was convicted and sentenced in the manner stated above.

(3.) Submission advanced by Sh.K.B.Andley for appellant was that in terms of alleged notice under Section 50, Ex.PW-2/A,-the appellant was only asked whether he desired to be searched in the presence of a Gazetted Officer or a Magistrate instead of being apprised that ho had a right under law to be searched so and, thus, there was total non-compliance of Section 50 of the Act In support of the submission, strong reliance was placed on the decision in K.Mohanan Vs., State of Kerala, 2000 SCC (Cri.) 1228.