EARNEST @ AIK Vs. STATE

JUDGEMENT

(1.) The present appeal is directed against the judgment dated 1 st October, 2016 passed by the learned Special Judge, NDPS whereby appellant was convicted for the offence punishable under Section 21(c) of Narcotics Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') and the order on sentence dated 5 th October, 2016 sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine, to further undergo simple imprisonment for three months. Manvinder Singh Marwah @ Romy, the co-accused, was also convicted under Section 21 (b) NPDS Act vide the aforesaid impugned judgment, however, he was sentenced to the period already undergone.

(2.) Briefly stated, prosecution case is that on 22 nd August, 2012, at about 8:00 P.M., one secret informer came to Special Cell, New Friends Colony Southern Range and informed SI Shiv Kumar (PW-9) that one Romy who was indulging in illegal supply of cocaine, would deliver cocaine to his known customer near Moolchand Hospital at about 10:50 P.M. He along with the informer went to Insp. Devender Singh (PW-12) who verified the said secret information from the informer. Thereafter, Insp. Devender Singh (PW-12) discussed the matter with ACP S.K. Giri, who directed Insp. Devender Kumar (PW-12) to take necessary action. Aforesaid information by secret informer was recorded vide DD No.14 (Ex.PW-9/X). A raiding party was constituted under the supervision of Insp. Devender Singh consisting of himself, ASI Hardwari (PW-10), HC Udaiveer, HC Arvind, HC Jaiveer, Ct. Guruvendra, Ct. Rajpal and Ct. Upender and the secret informer. The raiding party left the office around 9:25 P.M. in official vehicle bearing no. DL 1 CJ 5299 and one private car. SI Shiv Kumar asked 4-5 passerby to join the raiding team, but none of them agreed. At about 10:05 P.M., they reached Moolchand Hospital. Thereafter, Insp. Devender Singh briefed the raiding team and deployed them at different points. At about 10:50 P.M., one Swift Car bearing registration number UP 25 AM 4422 came from the side of Moolchand crossing and stopped near the gate of Moolchand Hospital. The driver of the said car came out, stood near the gate, started waiting for someone and remained there for 4-5 minutes.

(3.) The secret informer identified the said person as Romy. Romy thereafter turned towards the car and as he was about to leave when the raiding party apprehended him. He revealed his identity as Manvinder Singh @ Romy. Notice under Section 50 NDPS Act (Ex.PW-9/A) was served upon Manvinder Singh @ Romy. He was apprised of his right to be searched in front of a gazetted officer or Magistrate. However, he refused to get himself searched in front of a magistrate or gazette officer. Upon his search, one polythene was recovered from right side pocket of his half pant. The said pouch had a zip lock, and it contained white powder. The said substance was tested by smelling and by the field testing kit, which gave positive response for presence of cocaine. The said pouch was weighed on electronic scale and found to be 46 grams in weight. One sample of 2 grams was taken out from the substance and it was kept in another transparent zip lock polythene pouch and this pouch was converted into a cloth parcel. The remaining substance was also converted in a cloth parcel. 'SK' seal was applied on both parcels and FSL form. All these items were seized and exhibited as Ex.PW-5/A. SI Shiv Kumar prepared rukka (Ex.PW-9/B) and handed over to ASI Hardwari Lal along with FSL form, copy of seizure memo and sealed parcels, with the instructions that the rukka was to be handed over to the duty officer at the Police Station, while the remaining items were to be produced to the SHO. In the meanwhile, SI Ashish Kumar (PW-11) reached the spot and SI Shiv Kumar handed over the investigation to him. Consequently, FIR No.20/2012 (Ex.PW-4/A) was registered at PS Special Cell for the offence punishable under Section 21 NDPS Act.