RAM CHANDER SHARMA ALIAS PANDIT Vs. STATE

JUDGEMENT

(1.) THIS appeal arises out of the judgment and order dated 27. 02. 1997 delivered by the learned Additional Sessions Judge, Delhi (Designated Court under Narcotic drugs and Psychotropic Substances Act, 1985) in Sessions Case No. 128/95 whereby the appellant has been convicted under Section 21 of the NDPS Act, and sentenced to undergo rigorous imprisonment for 12 years and also to pay a fine of rs. 1,00,000 and to further undergo one year rigorous imprisonment in case of default of payment of fine.

(2.) THE case set-forth by the prosecution against the appellant is that an eye was being kept on the persons meeting the terrorists detained in Tihar Jail by the officials of Operation Cell of Delhi Police and during the surveillance it was revealed that some jail warders were engaged in the sale of drugs inside jail to the inmates. On 15. 07. 95 at 5. 00 p. m. secret informer gave an information on telephone to Inspector Surender Singh (PW-8) posted in the operation Cell and who was deputed for the purpose of keeping a vigil at the movements of terrorists in the Jail, that one jail warden Ram Chander Sharma, appellant herein, had gone to get "smack" from somewhere and would come to Hari nagar Bus Depot after about 2 " hours with huge quantity of "smack". ACP P. P. Singh (PW-9) was informed of that secret information which was recorded as DD No. 25 at the Operation Cell. A raiding party was then organized under the supervision of Insp. Surender Kumar (PW-10) who then along with other police officials reached Hari Nagar Bus Depot at 6. 15 p. m. where the secret informer was present there. Anuj Kumar (PW-3), a public person, agreed to become a witness and so was joined in the raid team. ACP P. P. Singh (PW-9) also arrived at that place at 7. 00 p. m. and at about 7. 30 p. m. the appellant got down from the bus and started proceeding towards the jail on Jail Road. He was apprehended at the instance of the informer. It is the further case of the prosecution that that the appellant was informed in writing vide notice Ex. PW-8/a, as required under Section 50 of the NDPS Act, that the police had information that he was having smack in his possession and he was to be searched and in case he wanted his search to be conducted in the presence of a Magistrate or some Gazetted officer necessary arrangement could be made to arrange the presence of a magistrate or a Gazetted Officer as it was his legal right. The appellant, however, did not exercise the option of search either before a Magistrate or a gazetted Officer and signed the notice under Section 50 declining the aforesaid offer made to him by the police officer PW-10 SI Surender Kumar. PW-10 then offered himself to the appellant to be searched before his search. The appellant searched PW-10 and did not find anything in his possession. Then person of the appellant was searched by PW 10 SI Surender Kumar upon which he was found to be in possession of 500 gms of "smack" concealed in a polythene bag "thaili" tied to his waist. Out of that smack 10 gms of smack was taken and sealed in a pullanda with the seal of "ss" and the remaining quantity of smack was sealed in a separate parcel which was also sealed with the seal of "ss". CFSL form was also filled up on the spot and on that form ACP P. P. Singh affixed his seal "pp". The seal after use was handed over to the public witness Anuj (PW-3 ). A rukka was then prepared by SI Surender Kumar and sent to Police Station Hari nagar through ASI Nand Ram along with the sealed pullandas and CFSL form which were kept with the SHO (PW-6) for safe custody and the SHO put his own seal also on the pullandas. FIR no. 470/95 (Ex. PW-1/a) was registered at Hari Nagar police Station for the offence punishable under Section 21 of the Act. During investigation the sealed packet containing 10 grams of the powder recovered from the possession of the appellant was sent to CFSL for analysis and on examination that powder was found to be "heroin". CFSL report (Ex. PX) to that effect was obtained. After completion of investigation the appellant was charged-sheeted and in due course he was tried by the designated Court under the NDPS Act for the offence under Section 21 of the NDPS Act.

(3.) PROSECUTION had examined 11 witnesses to prove the guilt of the appellant. At the time of recording of the statement under Section 313 Cr. P. C. the appellant had taken a plea that he had been taken away from his house on 12. 07. 95 by Inspector Surender Singh of Operation Cell and there he was kept upto 15. 07. 95 and then falsely implicated in this case. In defence, he examined one police official from Hari Nagar Police Station who proved on DD no. 6a dated 15. 07. 95 which was an information given to the police by the son of the appellant that the appellant was missing from 12. 07. 95. During the trial, Anuj kumar (PW-3), who was joined as an independent witness to the search conducted on the person of the appellant, had turned hostile. However, the learned trial court relied upon the testimony of police officials and on the basis of the testimony of those witnesses of recovery of smack from the appellant found the appellant guilty. Feeling aggrieved by the judgment of the trial Court holding him guilty, the appellant filed this appeal.