BABU KHAN Vs. STATE OF DELHI

JUDGEMENT

(1.) The appellant challenges his conviction and sentence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'Act' only) by the learned Trial Judge in case FIR No. 418/ 1997 registered at Police Station Vivek Vihar. Vide orders dated 7.11.1998, the appellant was convicted and on the same date, he was sentenced to undergo RI for ten years and pay a fine of Rs. 1 lac. In default of payment of fine, he was ordered to undergo further RI for one year.

(2.) The facts relevant for the disposal of this appeal, briefly stated, are that on 12th October, 1997, a secret information was received at about 7.45 a.m. upon which a raiding party was organised by PW 6, Inspector B.R. Mann. At about 8.30 a.m., the appellant was spotted coming from the side of Railway track towards B- Block of Vivek Vihar. On the pointing out of the informer, the said person, who was appellant herein, was apprehended. A notice under Section 50 of the Act was issued to him. He declined to be searched in presence of a Gazetted Officer or a Magistrate. Upon his personal search, 10 grams of smack was recovered. Two grams was taken out as sample and then two separate parcels were prepared. The seals of the I.O. Mahabir Singh as well as SHO, PW 6 were fixed on the parcels. After use, the seal was handed over to the public witness, PW 1, Anil Chadha. CFSL Form was prepared. The case property was deposited in Malkhana. In due course, the case property was sent to CFSL and on receipt of the report that it was smack, a challan was filed against the appellant.

(3.) The Trial Court framed a charge against the appellant to which the appellant pleaded not guilty. The prosecution examined as many as 7 PWs in support of its case. PW 1, Anil Chadha, was also examined in regard to the recovery of the smack from the appellant but he gave a different description of the contraband recovered from the appellant by saying that the smack which was being shown to him in Court was in the form of Tikki but at the time of recovery it was in the form of brown colour powder. He was cross-examined by the learned APP and in answer to a question he stated that he was not in a position to say as to whether it was same or not.