SALEEM Vs. STATE

JUDGEMENT

(1.) This is an appeal arising out of an order of conviction passed against the appellant whereby the appellant was convicted and sentenced to undergo rigorous imprisonment for 10 years and pay fine of Rs.1 lac and in default of payment of the fine, the appellant is to undergo a rigorous imprisonment for a further period of 2 years under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act").

(2.) Briefly the case, according to the prosecution is :-

(3.) That on 21st of June 1989, ASI Ilam Singh, posted as Special Staff, Central District, was on patrol duty with Head Constable (HC) Nanak Chand, ASI Jai Narain, Constables Ishwar Dayal, Virender Kumar. Head Constable Dilawar Singh under the supervision of Inspector Harish Chand Joshi in government vehicle No.DED-3756 driven by ASI Pyara Singh were present at Ajmeri Gate Chowk at about 3.40 p.m. A secret information was received by ASI Ham Singh that a person residing in Government Press Quarters would come from Okhia via Ranjit Singh fly-over and would go inside Turkman Gate while carrying opium in a bag. ASI Ham Singh asked 3/4 passers-by to join the raiding party but only one Chaman Lal s/o Brij Lal agreed while the others left without disclosing their names and addresses. A trap was laid under the supervision of Inspector Harish Chand Joshi by ASI Ham Singh with the members of the raiding party which consisted of himself, the police staff with him and public witness Chaman Lal near light point Ranjit Singh fly-over. At about 3.55 p.m. on the pointing out of the informer, accused Mohd. Saleem was intercepted near Ranjit Singh fly-over light point - Meer-Dard-Road. Accused Mohd. Saleem at that time was carrying a bag in his right hand and he was told that there was secret information about his possessing opium in the bag and was to be searched. Option was also given to the accused that in case he wanted, some Gazetted Officer or Magistrate should be called during his search. Accused declined to avail of the option in writing. ASI Ilam Singh offered his search to accused Mohd. Saleem which was also not availed by the accused and prepared a memo to this effect. Thereafter ASI Ham Singh took the bag from the right hand of accused Mohd. Saleem which was found to contain green polythene cover having opium therein. Opium was weighed and was found to be 2 Kg and 200 Grams, 100 Grams of opium was taken out as sample. The sample opium and the remaining opium with the polythene paper and the bag were put into two different parcels which were sealed with the seal of Vs. Seal after use was handed over to ASI Jai Narain and both the parcels were taken into possession vide recovery memo. Form CFSL was also Filled in at the spot. Rukka was sent together with the case property to the Police Station for registration of the case on the basis of which FIR No. 289 was registered. Accused was arrested in this case. The case property and Form CFSL were produced before Inspector Surinder Kumar, SHO who affixed his own seal SKG on the case property. Case property was deposited in the Malkhana of the Police Station. On 27.6.89 sample parcel with form CFSL were sent to CFSL by Mohrrar Malkhana Head Constable Rewti Prashad and was deposited with the CFSL. Report was received from CFSL which declared that the sample gave positive tests for opium and that the percentage of morphine therein was 7.03(approx.). After completion of investigation accused was challenged.