AZIZ Vs. STATE

JUDGEMENT

(1.) By the present appeal the Appellant impugns the judgment dated 9th October, 2002 whereby he has been convicted for offence under Section 20 NDPS Act and the order on sentence dated 10th October, 2002 directing him to undergo Rigorous Imprisonment for a period of ten years and to pay a fine to Rs. 1 lakhs and in default of payment of fine to further undergo Rigorous Imprisonment for a period of two years.

(2.) Learned counsel for the Appellant contends that as per the Ruqqa Ex. PW3/D it is evident that search has already been conducted and giving of notice under Section 50 NDPS Act thereafter was meaningless. Even in a case of chance recovery when the search of the person has to be taken Section 50 of NDPS Act is required to be complied with. Reliance is placed on Dilip and another vs. State of Madhya Pradesh, 2007 AIR(SC) 369. Despite the fact that the alleged recovery was made at 3.45 p.m. in broad day light no public witness was associated. The samples were sent to the CFSL after a delay of 13 days. Single sample of 200 grams was taken from the entire alleged contraband of 1.2 kg. which is erroneous as samples from each batti ought to have been taken separately. The raid certificate was not produced in Court. The signatures of the officer taking the samples from the malkhana to the CFSL are not appended in the malkhana register. The FIR number is mentioned on all the documents like Section 50 notice and report under Section 52 NDPS Act. Thus it is clear that the FIR was registered prior to preparation of documents. No memo of handing over of the seals to the independent witness has been prepared. There is non-compliance of Section 57 NDPS Act as no person from the office of DCP has appeared and PW7 states that he is from the office of ACP (Operations). In view of these serious infirmities appeal be allowed.

(3.) Learned APP for the State on the other hand contends that Head Constable Kishan Pal deposited the sealed parcels and CFSL form along with personal search of the accused. On 22nd February, 2001 he sent the exhibits through Head Constable Tej Pal vide RC No. 20/21 for depositing the same to FSL Malviya Nagar and the samples and result were obtained from HC Ved Pal on 24th April 2001. The relevant entries in this regard are made in Register No. 19. It is not essential that the person who has taken the samples from the malkhana to the CFSL should sign the entries. HC Tej Pal who has taken the samples had been examined in the Court who has stated that as long as the case property remained in his custody it was not tampered and this witness has not been cross-examined. Since in the present case the recovery was a chance recovery and from a polythene bag in the hand of the Appellant compliance of Section 50 of NDPS Act was not required to be done. Reliance is placed on State of Punjab vs. Baldev Singh, 1999 6 SCC 172. PW3, PW8 and PW9 the members of the raiding party have clearly stated about the raid conducted. Despite the lengthy cross-examination nothing has been elicited from them. PW7 has proved the report under Section 57 of the NDPS Act which was sent on the next day itself, that is, within 24 hours on 31st January, 2001. PW9 has clearly stated that the seals were handed over to him thus ruling out the possibility of tampering. PW10 the SHO has categorically stated that he put the seals on the case property, sample and the CFSL Form. He stated that he put the FIR number on the relevant documents and deposited the sample parcel and form CFSL in malkhana. There is no merit in any of the contentions raised by the learned counsel. The appeal be dismissed.