IDRIS KHAN Vs. STATE

JUDGEMENT

(1.) This appeal has been filed from Jail against appellant's conviction for an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') and sentence of rigorous imprisonment for a period of ten years and fine of Rs. 1,00,000 (one lakh) by Shri. R. L. Gupta, Additional Sessions Judge. Delhi, vide his orders dated August 12 & 14, 1987, respectively.

(2.) On the face of it, the appeal is barred by time. The limitation prescribed for filing an appeal is admittedly 60 days but the appeal is filed belatedly by 27 days. There is no prayer made for condonation of delay. The appeal is, thus, liable to be dismissed as being time barred. However, I have also heard Ms. Avnish Ahlawat, Advocate, who acted as Amicus Curiae for the appellant and Ms. Usha Kumar for the State and have gone through the file and find that there is no merit also in the appeal.

(3.) The prosecution case, in brief, is that on April 16, 1986. PW 3 Inspector Ram Singh (then SHO, Hauz Kazi) had received a secret information at his office at about 4.15 P.M. that four persons were present at the Tonga Stand carrying charas. Without losing any time a raiding party was organised comprising of SI Raghubir Singh, SI Banwari Lal, SI Ashok Kumar, ASI Bashir Ahmed, Head Constable Krishan Pal, Mohd. Salim and six more constables and they reached the spot at 4.30 P.M. and on the pointing of secret informer the appellant and three more culprits were apprehended and each of them was stated to be carying a bag/briefcase in their hands respectively. The appellant was found to be holding a bag in his right hand and before taking his search the SHO is stated to have requested certain public persons to join but none came forward and thereafter the appellant as well as the other three culprits were given an option that their search could be carried out in presence of any gazetted officer or magistrate after informing that a secret information was available with the police party that they were in possession of charas. All of them are stated to have declined to have their search carried out before any gazetted officer or magistrate. The bag in possession of the appellant was found to contain 12 packets wrapped in a khaki paper and each of the packet was found to contain charas weighing 1 kilogram each. The representative samples from each of the packets were obtained and were duly sealed with the seal of the SHO and the remaining charas was sealed separately with the seal of the said Inspector. Recovery memo. Ex. Public Witness 3/A was prepared. The case was registered on the basis of Rukka sent by SI Banwari Lal. The case property was duly deposited in Malkhana and thereafter duly sealed samples were taken by Public Witness 1 Constable Mitlesh Kumar and deposited at CFSL intact on April 21, 1986. PW2 Head Constable Mohd. Salim, Incharge of Malkhana, deposed about the case property remaining in Malkhana intact and sending of the samples through Constable Mitlesh Kumar and after the samples have been analysed the same were brought back duly sealed with the seal of CFSL by Constable Mohinder Singh and deposited in Malkhana intact. He proved the entries from the Malkhana Register, copy of which is Ex. Public Witness 2/A. He categorically stated that as long as the case property remained in Malkhana no one tampered with the same. The report of the CFSL Ex. PA depicted that all these samples gave positive test for charas. It is also indicated that the samples deposited in CFSL had the seals intact as per official specimen enclosed.