ASHIF KHAN @ KALLU Vs. STATE

JUDGEMENT

(1.) THE present appeal has been filed against the order of conviction of the appellant dated 11th July, 2012 for the offence under Section 21 (b) of the Narcotics Drugs and Psychotropic Substances Act (hereinafter referred to as 'the NDPS Act') and order on sentence dated 17th July, 2012 in Sessions Case no.97/2007 in FIR No.87/2006, PS Narcotics Branch.

(2.) THE brief facts are that SI Sunil Jain (PW9), the Investigating Officer on receiving a secret information at about 1.30 p.m. recorded the same as D.D.No.10A (Ex.PW8/A) and produced the secret informer before the SHO of Narcotics Branch Inspector Kharak Singh (PW8). He conveyed the said information to ACP Mehar Singh on telephone in compliance of the provisions under Section 42 of the NDPS Act. On being directed by Inspector Kharak Singh (PW8), IO/SI Sunil Jain (PW9), Constable Om Prakash, HC Satbir (PW6) HC Vijay Pal (PW10) and secret informer along with his investigating kit reached at the spot in vehicle no.DL 1CF 3426 driven by Ct.Parveen at about 2.00 p.m. after making departure entry as DD No.11A (Ex.PW9/A). On refusal by the public persons to join investigation, the raiding party took their respective positions and saw the appellant coming from the side of Seelampur Red Light on foot and he was identified by the secret informer who thereafter left the spot. When after waiting for about 3 -4 minutes, the appellant tried to move away, the raiding party apprehended him. The legal rights of the appellant were apprised to him. He was also informed about the secret information which the police party was having and he was also informed about his rights to get his search conducted in the presence of a gazetted officer or a magistrate and was offered the search of the raiding party and that of official vehicle prior to his search and on refusal of the appellant (Ex.PW6/2) to the offers, a notice under Section 50 of the NDPS Act (Ex.PW6/1) was given to him. At that stage efforts were also made to include the public persons into the search and on their refusal, search of the appellant was conducted and from his right side pocket of wearing pant smack was recovered. It is weight was found to be 320 gms. Thereafter two samples of 5 gms. each were taken out and were sealed into a parcel and FSL form was filled and the remaining smack was also sealed into a separate parcel and all the three parcels were given the marking of 'A', 'B' and 'C'. Seal of "5BPSNBDELHI" was affixed on all the four articles and these were seized vide memo Ex.PW6/3. Seal after use was handed over to HC Satbir. Rukka Ex.PW9/B was prepared and HC Vijay Pal (PW10) was sent to the Police Station along with three FSL Forms and carbon copy of the seizure memo and the rukka and he on reaching at police station handed over the rukka to Duty Officer ASI Ghasi Ram (PW3) and handed over the articles along with parcels to SHO Kharak Singh (PW8) who had fixed his seal "1SHONBRDELHI" on three parcels and FLS Form and put FIR No. and his signatures on all these articles and thereafter handed over the same to MHCM HC Jagdish Prasad (PW7) who made relevant entries in the Register No.19 and deposited these articles along with FSL form into the Malkhana vide entry Ex.PW7/A. On the basis of DD no.14A (Ex.PW3/3), FIR No.87/2006 (copy of which is Ex.PW3/2) was registered and endorsement (Ex.PW3/1) on the rukka was made. Entry of closure of the FIR was also made vide DD No.16A (Ex.PW3/4). Subsequent investigation was handed over to ASI Anoop Singh (PW5) who on reaching at the spot took over the investigation from SI Sunil Jain (PW9). He prepared the site plan (Ex.PW5/1) on the pointing out and arrested the accused -appellant vide arrest memo Ex.PW5/3 and conducted his personal search vide memo Ex.PW5/4. The articles recovered on the personal search of the accused -appellant includes carbon copy of notice under Section 50 of NDPS Act (Ex.PW6/4) and cash amount of Rs.170/ -, one wrist watch, one golden chain, one black colour purse containing some visiting cards and documents etc. He remained at the spot till 10 p.m. and reached at the police station at 10.45 p.m. and produced the accused -appellant before SHO Inspector Kharak Singh (PW8) and articles of personal search of appellant were deposited with MHCM. Report (Ex.PW2/3) under Section 57 of the NDPS Act was prepared and forwarded to senior officers by Insp.Kharak Singh (PW8) which was received in the DCP office vide diary No.4419 and 4420 (copy of which is Ex.PW2/1). The original report under Section 57 of NDPS Act received in the office of DCP is Ex.PW2/2. The samples were sent to FSL on 18.10.2006 by MHCM HC Ishwar Singh (PW4) vide RC No.126/21 (Ex.PW4/C) and acknowledgement receipt (Ex.PW4/B) was obtained. The sample Mark A which was sent to FSL was chemically analysed by Dr.Madhulika Sharma, Assistant Director (Chemistry), Forensic Science Laboratory, Rohini, Delhi and she submitted her report bearing no.FSL.2006/C -3524 dated 02.01.2007 which is admissible in evidence under Section 293 of the Code of Criminal Procedure, 1973.

(3.) AFTER considering the arguments of learned counsel for the appellant and of learned APP for the State, the trial court had convicted the appellant for the offence under Section 21 (b) of the NDPS Act.