RAM SWAROOP Vs. STATE GNCT OF DELHI

JUDGEMENT

(1.) THIS criminal appeal has been filed by the appellant under section 374 (2) Cr. P. C. aggrieved of the judgment dated 21. 9. 1996 passed by Additional Sessions Judge, Delhi in sessions Case No. 90/2006 arising out of FIR No. 386/2005 under Section 15/61/85 of the NDPS Act, registered at Police station Kashmiri Gate, wherein after holding the trial the additional Sessions Judge convicted the appellant under all the aforesaid Sections and sentenced him to undergo RI for ten years with a fine of Rs. 1 lakh and in default to further undergo ri for two years vide orders passed on 28. 9. 1996.

(2.) BRIEFLY stating the case of the prosecution is that on 22. 7. 2005 si Ritesh Kumar while patrolling reached at the outer gate of isbt where Constable Balwant Singh met him at 10. 15 a. m. At that time, the accused was found sitting on two white colour kattas on the left side of foot path of outer gate of ISBT and on seeing the police party he tried to run away after leaving the kattas which raised suspicion in the mind of SI Ritesh Kumar, and accused was apprehended and on interrogation he disclosed his name as Ram Swaroop and further on being asked as to what were the contents of those kattas, he got perplexed and disclosed that the contents of the kattas were chura post brought by him from Shahjanpur, Rajasthan for taking the same to Punjab. SI Ritesh Kumar informed the accused about his legal right to get himself searched before a gazetted Officer or a Magistrate, who can be called at the spot or that he can be produced before them and a notice under section 50 of the NDPS Act was served upon the accused but the accused refused to get himself search in the presence of a gazetted Officer or a Magistrate and the reply of the accused was recorded on the notice under Section 50 of the NDPS Act. SI Ritesh Kumar conducted the search of the accused. He also asked passerby to join the proceedings but nobody agreed to join the same and accordingly, SI Ritesh Kumar asked constable Balwan Singh to bring investigation material and balance and weights. The kattas were weighed with the help of balance brought by Constable Balwan Singh. They were found to be containing 32 packets of polythene each, containing poppy straw powder and each packet weighed 1 kg. Thus, the total quantity recovered from accused was 64 kgs. Thereafter, from the recovered poppy straw powder, sample of 1 kg each was drawn out from each of the katta. Samples and the remaining poppy straw powder were converted into pullandas and were sealed with the seal of RK. The kattas were converted into pullandas and were given sl. No. 1 and 1a while the sample pullandas were given Sl. No. 2 and 2a. SI Ritesh Kumar then prepared the relevant documents and got the FIR registered. Constable Balwan singh handed the sealed pullandas sealed with the seal of RK, form FSL on which also the seal of RK was affixed and carbon copy of seizure memo to Inspector Randhir Singh Khatri, Addl. SHO who was working as SHO and who also affixed his seal rsk on all the pullandas, form FSL and mentioned the number of FIR on the pullandas, form FSL and carbon copy of seizure memo and deposited the same in the malkhana. The necessary entries in this regard were also made in the malkhana register by MHCM. The further investigation of this case was handed over to ASI Jagdish Chander who reached at the spot and at the instance of SI Ritesh Kumar prepared the site plan Ex. PW7/b, arrested the accused and conducted the personal search. The accused was also got medically examined. ASI Jagdish Chander also prepared a report under section 57 of the NDPS Act and sent a copy thereof to ACP, sadar Bazar on 23. 7. 2005. After completing the investigation, the challan was filed before the Additional Sessions Judge. The appellant pleaded not guilty and accordingly the charges were framed against him. In order to prove its case, prosecution examined eight witnesses. Thereafter, the statement of the appellant was recorded under Section 313 cr. P. C. However, no defence evidence was led by the appellant. The trial court vide impugned orders dated 21. 9. 1996 and 28. 9. 1996 convicted the appellant under section 15/16/85 of the NDPS Act and sentenced him to undergo RI for ten years and to pay a fine of Rs. 1 lakh and in default RI for three years as aforesaid.

(3.) IT is the case of the appellant that the order of conviction and order of sentence passed by the Additional Sessions Judge are unsustainable in law taking into consideration the facts on record.