ASHRAF ALI Vs. STATE

JUDGEMENT

(1.) The facts giving rise to this appeal are that on receipt of a secret information in the Crime Branch Office of Delhi Police on 1.5.1987, S L , Hari Singh organised a raiding parly consisting of ASI Jasbir Singh, ASI Ram Partap. HC Kamal Singh, HC Jamaludin, Constables Dbaramvir, Balbir Singh, Same Singh, Devi Bharan, Dalip Kumar, Prem Chand, Addesh Kumari under the supervision of Inspector Omvir Singh at about 5 a.m. No person from the public was included in the raiding party, as nobody showed his inclination to join the same despite request made by the police officers. Nakabandi was made at T-point at Lodhi Road and Dargah Nizamuddin road at about 7 am on the pointing out of the informer, the appeilant Ashraf along with another person Nasiruddin were apprehended. Both of them were having one thela (bag) each in their hands. They were given an offer whether they wou!d like to be searched before a gazetted officer or a magistrate but they refused. From the search of the bag which the appellant Ashraf was holding in his hand, opium was recovered which on Weightment was found to be 3 kgs. 50 grams was taken out as sample. The sample as well as the remaining opium so recovered from Ashraf were sealed on the spot with the seal of JS and CFSL form was filled in and the seal of JS was affixed on it as a specimen The recovery memo Ex. Public Witness 5/A was prepared Rukka Ex. Public Witness K/A was sent to the police station on the basis ot which formal FIR was recorded Site plan Ex, Public Witness 7/A was prepared. The appellant was arrested and he was explained the ground of his arrest and his personal search vide Ex Public Witness 5/B was taken. Special report about the arrest and recovery of the contraband along with the case property, the sample and CFSL from were sent to the SHO, who after putting his own putting his own seal on the sample and case property deposited them in the Malkhana of the police for safe custody. CFSL form along with the somple was sent of the CFSL Lodhi Road, New Delhi ana Report Ex Public Witness 8/3 was received. According to the report the contents of the sample parcel gave positive test for opium and percentage of morphin was 3.3 After completing all the formalities, challan was filed in the court and the appellant was charged under Section 18/21 of the NDPS Act. He pleaded not guilty to the said churge and claimed trial.

(2.) In support of its version, the prosecution examined eight witnesses in all including inspector, Daulat Ram, SHO and SI Hari Chand 10 of the case. The defence of the appellant is that he is electrician by profession. On that day, he was working in the guest-house of Nasiruddin when police came there and searched the premises. From one of the almirahs of Nasiruddin, opium was recovered but nothing was recovered from him and he has been falsety implicated in this case In defence he examined three witnesses The learned Addl Sessions Judge believed the prosecution version and convicted appellant for the offence punishable under Section 18 of the NDPS Act and sentenced the appellant to undergo rigorous imprisunment for ten years and to a fine of Rs. 1 lakh, the minimum sentence prescribed for the said offence, in default of payment of fine he was further ordered to undergo rigorous imprisonment for six months Benefit nf set offunder Section 428 Criminal Procedure Code . was allowed to him.

(3.) Aggrieved, this appeal has been preferred. The learned counsel for the appellant challenged the judgment of the learned Addll Sessions Judge on various grounds. His first contention is that no public person was joined in the raiding party before conducting search of the appellant though there were many persons available in the vicinity and near the place from where the appellant was apprehended. That area is thickly populated. According to the learned counsel nonjoining of any person from the public in the raiding party is fatal to the prosecution case He put reliance on a decision of this Court in Sunari @Chamari v. State-34 (1988) D.L.T. 124 in support of his contention that before making a search the officer or the other person concerned is required to call two or more witnesses which is not idle formality.