MUNNU KHAN Vs. STATE

JUDGEMENT

(1.) By the present appeal the Appellant impugns the judgment dated 10th September, 2003 whereby he has been convicted for offence under Section 20 NDPS Act and the order on sentence dated 12th September, 2003 directing him to undergo Rigorous Imprisonment for a period of ten years and to pay a fine to Rs. 1 lakh and in default of payment of fine to further undergo Rigorous Imprisonment for a period of thirty months.

(2.) Learned counsel for the Appellant contends that no public witness was associated with the search though the Appellant was apprehended after he alighted from the bus near the bus stop where lot of public was present. Not only was there a market but even employees of metro were present besides people being present on the DTC bus stop. Despite prior information, the raiding party did not even carry the scales and the scales were taken from a nearby rehriwala. Legal requirement of notice under Section 50 NDPS Act has also not been complied with as no legal right of being searched by a Gazetted Officer or a Metropolitan Magistrate was explained. Section 42 NDPS Act has not been complied with. The explanation of the Appellant rendered under Section 313 Cr.P.C. was that he was a fruit seller and on the day of occurrence he was going in a rickshaw. At Shastri Park Red Light a scooter struck against the stationary rickshaw and the Appellant fell down on the rickshaw puller. The Appellant asked the scooterist to drive the scooter carefully however, he grappled with him. Later he found that they were police officers in civil dress and thus they took him to the police station and foisted this false case on him. This explanation has not been considered

(3.) Learned APP for the State on the other hand contends that Section 50 NDPS Act was not required to be complied with in the present case. The recovery was not made from the personal search of the Appellant but from the polythene bag in his hand. PW9 Inspector Hem Chand has stated that the information was noted in writing and the same must have been informed in routine to the senior officers. Efforts were made to join the public witnesses however, since none came forward the Appellant was apprehended as no further time could be wasted in associating public witnesses. For the immediate requirement, taking the scales from the nearby rehriwala is not prohibited. Hence the appeal be dismissed.