MOHD. RAHIS KHAN Vs. STATE

JUDGEMENT

(1.) NONE is present on behalf of the appellant. Ms. Charu Verma, Advocate, who is present in court, is appointed as an Amicus Curiae in the matter. The present appeal under section 374 of the Code of Criminal Procedure is directed against the judgment dated 7.8.2004 and the order on sentence dated 9.8.2004 by which the appellant was sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs. 40,000/ -, and in case of default of payment of fine to further undergo S.I. for four months.

(2.) THE appellant was stated to be in illegal possession of 100 grams of smack; and for the aforesaid offence, case was sent up for trial under sections 21/61/85 NDPS Act. As per the prosecution on 27.6.2001 while S.I. Narender Kumar was present for anti pick pocket pocketing checking at Shyam Giri Mandir Red Light, GT Road with police party consisting of Constable Om Prakash, Constable Devender Kumar, Constable Rajbir and Constable Pradeep Kumar at about 6.00 a.m. appellant was seen coming from the side of Seelampur and he took a sudden turn on seeing the police party; on suspicion he was apprehended, his search was conducted and from the left side pocket of his pant smack, packed in a polythene, was recovered. Notice under section 50 of the NDPS Act was issued to the appellant; 4 -5 persons were requested to join the proceedings, but none agreed to the request. The recovered substance was weighed and it was found to be 100 grams; one sample was taken; the seizure proceedings were conducted; and FIR was got registered. The appellant was then arrested under Section 21 of the NDPS Act; ten witnesses were examined by the prosecution, however, no evidence was led by the defence.

(3.) COUNSEL for the State submits that the prosecution has been able to establish its case beyond any reasonable doubt. The appellant was apprehended at the spot. As per the testimony of the PW -8, no independent witness had agreed to participate in the proceedings. Counsel for the State further submits that a notice under Section 50 of the NDPS Act was issued to the appellant, however, he declined to be searched in the presence of a gazetted officer or a Magistrate. It is also submitted that as the mandatory requirement has been complied with, thus the appeal should be dismissed.