RAFIQ ALIAS RAFIQ KANA Vs. STATE

JUDGEMENT

(1.) This appeal is directed against the judgment of conviction and order of sentence both dated 26.8.1994 whereby the appellant has been convicted for an offence under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (for short the 'Act') and has been sentenced to RI 10 years and a fine of Rs. one lakh and in default of payment of fine further Rl for one year.

(2.) Briefly the facts are that ASI Inderpal Singh was posted in Narcotics Cell at Kamla Market, on 23.4.1992 at about 1200 Noon an informer came to him and gave information that Rafiq accused with large quantity of smack will go to his house (in Gali No. 11, Sadar Bazar Delhi) between 1 P.M. to 2 P.M. Said ASI informed the ACP Civil Lines about it and then organised a raiding party comprising of himself, SI Ramesh Rana, H.C. Jagbir Singh, Cts. Gyanainder Singh, Ram Bhool, Dalbir Singh, Suresh Raj and two lady constables Lekha and Geeta besides driver Vijendar and proceeded towards the spot and reached at Chowk Bara Tooti at about 12.20 p.m. in government vehicle, 3-4 passersby and shopkeepers were asked to join the raiding party, but they declined; however one Desraj @ Desa agreed and was joined in the raiding party. The police party took positions near the corner of Gali No. 11, Sadar Bazar Road; at about 1.20 p.m. the accused came and on the pointing of the informer he was apprehended; informed about the secret information and asked if he wanted to be searched in the presence of a G.Os. or M..M., arrangement for it could be made and a notice under Section 50 to this effect was given but the accused declined. The accused also declined to take the personal search of the members of the raiding party. Then on the personal search of the accused from the right side pocket of his pant one packet in polythene cover was recovered which on checking found containing 50 grams of heroin. 5 Gms. was taken as sample and the sample and the remaining heroin were separately packed and sealed with the seals of 'RR' and CFSL form was also filled in. A rukka was drawn by the said ASI and the case property and the rukka were sent through H.C. Jagbir Singh to the SHO and got the FIR registered. The SHO after affixing his own seal of MCS deposited the case property with the Moharar Malkhana. The accused was arrested. The appellant was tried for an offence under Section 21 of the Act. The prosecution inter alia examined Public Witness -3 Des Raj @ Desa, the public witness, Public Witness -5 H.C. Jagbir Singh, Public Witness -6 SI Ramesh Rana and Public Witness -7 ASI Inder Pal Singh, 10 as witnesses of the recovery and . of the contraband. Public Witness -3 Des Raj has not supported the prosecution case was declared hostile. The accused in his statement under Section 313 Criminal Procedure Code . denied the incriminating circumstances and pleaded that he was taken away from his house and falsely implicated in the present case. He, however, did not lead any evidence in his defence. The learned trial court accepted the other evidence of prosecution and convicted and sentenced him as aforesaid.

(3.) The learned counset for the appellant has raised a number of legal pleas as well as about the reliability of the evidence. These contentions are refuted by the learned counsel for the State.