JAWAHAR Vs. STATE OF DELHI

JUDGEMENT

(1.) This appeal has been preferred against the order dated 5th November, 2000 of learned Special Judge, under Narcotic Drugs and Psychotropic Substance Act (in short "the NDPS Act"), whereby the learned Special Judge convicted the appellant of possession of 600 gm of 'smack' under Section 21 of the Act and against order dated 8th November, 2000 whereby she sentenced the appellant to undergo RI for 10 years and a fine of Rs.1 lac, in default, to further undergo SI for three years.

(2.) Brief facts relevant for purpose of deciding this appeal are that Sub Inspector Atar Singh received a secret information on 26.9.1999 at about 11 am that one person named Jawahar would come on that day at Yamuna Pushta to deliver a consignment of smack. This information was recorded by him vide DD NO.8. He sent a copy of this DD, containing secret information, to Additional Commissioner of Police, Narcotic Branch and also informed the SHO. SHO directed him to conduct a raid. On this direction, he organized a raiding party and the raiding party along with informer positioned itself at Yamuna Pusta at around 11.15 am. Public persons were asked to join the raiding party, but none agreed. At about 12.15 pm, the appellant came at Yamuna Pusta and he was apprehended on the pointing out of the secret informer. He was informed about the police having information of his possessing smack. He was given an option to be searched before a Magistrate or a Gazetted Officer. A notice under Section 50 of the NDPS Act to this effect was served upon him on which he recorded his refusal to be searched before a Magistrate/Gazetted Officer. Thereafter, the appellant was searched by Sub Inspector Atar Singh and 600 gm of 'smack' was recovered from right side pocket of his pant. Out of this, 10 gm was separated as sample. The sample 'smack' and remaining smack were sealed in separate parcels with the seal of ASY. Form CFSL was filled and seal after use was given to Head Constable Virender Singh. A rukka was prepared and sent through Head Constable Ban Singh for registration of the case. FIR was registered at police station, Narcotic Branch, Kamla Market and further investigation was handed over to SI Perm Chand, who reached the spot, arrested the appellant and proceeded further with the investigation. A report under Section 57 of the Act was sent to Senior Officers by the I.O. Sample of 'smack' was sent for chemical analysis to CFSL which gave positive result for 'smack'. After completion of investigation, challan was filed in the Court. The appellant was charged for offence under Section 21 of the Act, to which he pleaded not guilty.

(3.) SI Atar Singh appeared as PW-1. He proved the notice given by him to the appellant under Section 50 of the Act as Ex.PW1/A. This also contained refusal Ex.PW1/B of the appellant, appended on it, in his own hand under his signatures. He supported the prosecution case of recovery of 600 gms of smack from the appellant and drawing a sample of 10 gm. After seizure, the case property in sealed condition was produced before the SHO vide memo Ex.PW1/C along with rukka Ex.PW3/A. Form CFSL and seizure memo were also sent along with the case property to the SHO. He also proved handing over of the seal. SHO put his seal of 'SR' on both parcels and CFSL Form, and deposited the same with Malkhana. The Malkhana Moharar handed over the sample along with CFSL Form affixed with the seal of SR and ASY to PW-6 for depositing it with CFSL, Chandigarh. PW-6, Constable Harpal Singh, deposited the same vide road certificate no.22/21, Ex.PW6/C. PW-4 Ashok Kumar Dalera, Chemical analyst, proved that the sample and CFSL Form were received with seal intact and sample gave positive test for smack.