LALMAN Vs. STATE

JUDGEMENT

(1.) This appeal is directed against the judgement of conviction and order of sentence both dated 6.8.1992 passed by the learned Additional Sessions Judge, Delhi in FIR No.84/90, P.S. Paschim Vihar whereby the appellant has been convicted for an offence under Section 18 of the NDPS Act (for short the Act) and sentenced to undergo rigorous imprisonment for a period of 10 years and a fine of Rs. 1,000,00.00 and in default of payment of fine further simple imprisonment for one year.

(2.) The appellant was provided an Amicus Curiae. Learned Amicus Curiae has contended that the conviction is invalid and unjustified on the material available on record. He has raised several legal pleas besides challenging the reliance placed by the Trial Court on the oral testimony.

(3.) Briefly the facts are that a police party led by Ran Singh, Sub Inspector posted at Crime Branch, Dev Nagar alongwith police officials, namely, Gurmeet Singh, Sub Inspector, Sandeep Kumar, Sub Inspector, Jai Bhagwan and Gita Ram, Head Constables and some other constables was on patrolling duty in the area on 5.3.1990 when at about 6.30 P.M. at Peera Garhi Crossing a secret informer gave information about the accused going ahead being in possession of opium. He organised a search party and also joined one Lal Singh, a public witness from there and at about 6.40 P.M. they intercepted the accused near Gautam Filling Station, Rohtak Road on the pointing out of the informer. The accused was informed that he was suspected to be having opium and if he desired, he could be produced before a Gazetted Officer or a Magistrate for conducting his search; he opted to be searched in the presence of a Gazetted Officer Shri S.D. Sharma, ACP posted at Crime Branch was called on telephone, he came at about 7.30 P.M. and introduced himself to the accused that he was an ACP and a Gazetted Officer and in his presence search of the accused was conducted; on search it was found that the accused was wearing a jacket having two hooks on upper portion and four strips on the lower portion. On opening the jacket it was found to contain opium weighing 2.200 Kgs. wrapped in a polythene paper. 20 gms. sample was taken from it. The sample and the remaining opium were separately packed and sealed with the seal of RSK of SI Ran Singh. After preparing seizure memos the case property was seized; a report/rukka was drawn; the rukka, the case property and a CFSL form with the seal of RSK were sent to the SHO, Inspector Mahesh Sharma who also put his own seal of MCS on the case property and CFSL form and deposited the same in the Malkhana. The sample was sent to the CFSL and its report Ex.P.W.7/B gave positive test of opium with 4.9 percentage of Morphine. The accused was prosecuted. During the trial, Prosecution examined Lal Singh, public witness as Public Witness .3, Shri S.D. Sharma, ACP as Public Witness .5, SHO, Shri Mahesh Sharma as Public Witness .6, ASI Siri Kishan as Public Witness .2 had registered the FIR, Constable Hari Singh as Public Witness .1 who had taken the sample of opium to CFSL on 13.3.1990, ASI Zile Singh Public Witness .4 who was the Moharar Malkhana who proved relevant entry Ex. PW4/A and about the deposit of the case property, Constable Resham Pal Singh Public Witness .8 as a member of the raiding party who had taken the case property and Rukka to the SHO, though his name was not included alongwith the charge sheet nor he was examined under Section 161 Cr.P.C. and S.I. Ran Singh Public Witness .7 who was leading the raiding party and is the I.O. of the case. The accused in his statement under Section 313 Cr.P.C. denied the recovery and alleged false implication. He took the plea that "Quarrel had taken place at the tea shop at Mangol Puri. I alongwith 3/4 persons were taken to the P.S. and I was falsely implicated in this case". He did not lead any evidence. The trial court on the material available convicted and sentenced the appellant as aforesaid.