CHAMELI DEVI Vs. STATE

JUDGEMENT

(1.) This appeal is directed against the judgmentorder on sentence of the learned Additional Sessions Judge, New Delhi by whichhe convicted the appellant under Sections 20(ii) and 21 Narcotic Drugs andPsychotropic Substances Act, 1985 (tor short NDPS Act) for being found inpossession of 480 grams of charas and 6 grams of heroin and sentenced herto undergo Rigorous imprisonment for ten years on each count and also topay a fine of Rs. 1 lac and in default of payment of fine to suffer further RIfor six months. The substantive sentences of imprisonment were made torun concurrently.

(2.) The case of the prosecution as per the rukka Ex. PW4/A is thaton 20-7-87 at about 4.15 p.m SI Shanker Singh of PS Vasant Vihar alongwith constable Attar Singh was present on patrol duty in the area of VasantVihar. While he was near Munirka Marg, another police party comprisingof few more constables met them. In the meanwhile he received secretinformation that one Mst. Chameli resident of a Jhuggi of KusumpurPahari, New Delhi who was carrying on the illegal trade in smack andcharas, would be coming from the side of eastern road through the park ofMullirka Marg and that she had charas in her possession. Thus he constituted a raiding party comprising of himself and the police officials and onepublic witness Sunil Sethi. Lady Head Constable Keshwanti was also joinedin the raiding party who had reached the spot on receiving information.They picketed a Nakabandl near the T point of Munirka Marg. Atabout 5.30 p.m., the appellant who was known earlier to SI Shanker Singhreached there. She was seen carrying a white coloured cloth bag in herright hand. The SI told her about the secret information and gave her anoption that she could be searched before a Gazetted Officer if she so desired.She declined the offer. He also offered search of the members of the raidingparty by the appellant which was also declined. He then checked the bagcarried by the appellant which was found to contain a slab of charaswrapped in a polythene bag. Then lady HC Keshwanti on direction of theSI searched the person of the appellant. From right pocket of her Kurta 38purias of heroin wrapped in a newspaper and covered in polythene paperwere recovered. Weighing scales were procured. Sample of 100 grams wasseparated from the charas. Contents of all the PURIAS collectively weighed6 grams out of which 2 grams was separated as sample. The sample parcelsand the remaining articles were then separately sealed with the seal impression SSR of the SI. In the meanwhile the SHO, Inspector A.P. Rai alsoreached the spot. SI Shanker Siagh narrated the facts to him and producedthe accused and the case property before him. He affixed his seal impressionAPR upon all the parcels. Site plan was prepared. Rukka was sent to thepolice station. Statements of the witnesses were recorded. SI ShankerSingh handed over his seal to the public witness Sunil. CFSL Form wasalso prepared at the spot. The sample parcels were later on sent to CFSLand on receipt of a report the challan was filed and the appellant convictedand sentenced as stated above.

(3.) I have heard arguments advanced by learned Counsel for theparties. Learned Counsel for the appellant raised various contentions whichare as follows. (1) The public witness in this case has not supported thecase of the prosecution (2) CFSL Form which was alleged to have beenprepared at the spot was neither deposited in the Malkhana nor there is anyevidence to indicate that it was taken to CFSL by the constable when hewent there along with the sample parcels. (3) The option of search allegedlygiven by the police to the appellant was a partial option inasmuch as shewas only asked whether she desires to be searched by a gezetted officer.She was not given any option to be searched by a Magistrate in the alternative as mentioned in Section 50 of the NDPS Act. (4) The search in thiscase yielding the recovery of charas was taken by SI Shanker Singh againstthe mandate of Section 50(4) of the Act according to which a female shouldbe searched by a female only and (5) The SHO did not hand over his sealafter its use to any witness and thus the sample could be tampered with atany time.