K M SALEEM Vs. STATE

JUDGEMENT

(1.) The appellant-K. M. Saleem @ Rai Gopal, a resident of Sri Lanka, who has been convicted of an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, on being found in possession of 940 gms. of smack heroin on February 14, 1987, at about 12.45 P.M. at International Airport Hall of Indira Gandhi International Airport vide judgment dated January 23, 1988, of Shri R. P. Gupta, Additional Sessions Judge and has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000 (one lakh) and in default ot payment fine, to undergo further rigorous imprisonment for two years vide subsequent judgment dated January 27, 1988, has filed this appeal challenging his conviction and sentences.

(2.) Facts, in brief, are that P. C. Mann, Sub-Inspector, (PW8) while being posted at the relevant time in Police Station I.G.I. Airport alongwith Head Constable Ram Kumar (Public Witness 6) and Constable Ramesh Chand, was present in front of Arrival Hall of the said Airport and he received a secret information that the presence of the appellant outside the Departure Hall having a briefcase containing the smack. Shri M. L. Meena, SI-10, (PW2) joined the raiding party and the Assistant Commissioner of Police Shri Om Prakash Arya (Public Witness I) was also informed and he also came and joined the raiding party. Public Witness 3 Dharamvir Singh, a taxi driver, who admittedly plies his taxi at that Airport was also joined and on the pointing out by the secret informer the appellant was apprehended and the briefcase was got. opened which contained only the clothes whereas on suspicion that the briefcase was unsually heavy its top and bottom were broken open with the help of a knife and two packets wererecoveicd. The packet taken from the upper bottom was found to contain 410 gms of smack and the other packet taken from the lower bottom was found to contain 530 gms of smack. The samples from each of the packets were taken and the samples as well as the remaining smack were converted into separate sealed parcels. The briefcase Ex. PI, clothes Exs, P2/1 to 3 and P3/1 to 3 and the polythene papers and smack therein Exs. P4, P5, P6 and P7, passport Ex. P8 and one open air-ticket Ex. P9 issued by Indian Airlines for Delhi to Bombay were taken into possession from the accused, Rukka Ex. Public Witness /8 was prepared. The site-plan Ex. Public Witness /8B was also prepared. The sample were sealed with the seal of the Investigating Officer as well as of the S.H.O. and the case property was deposited in the Malkhana on the same day. The samples were got sent to Central Forensic Science Laboratory (for short 'CFSL') through Constable Krishan Dutt (Public Witness 5), who deposited the samples with CPSL and the report of the CFSL Ex. PA was received which depicted that contents of both the samples gave positive test for heroin and Harcotene. It is also pertinent to mention that this appellant was admittedly earlier arrested on 'February 8, 1987, in F.I.R. No. 42/87 registered undersections 419 and 420 Indian Penal Code and he remained in Jail upto February 13, 1987, when he was released on bail. At the time of his arrest in connection with F.I.R. No. 42/87, the appellant had given his name as Raj Gopal. The prosecution version was duly corroborated by all the material witnesses, namely, the Assistant Commissioner of Police, S.H.O., public witness. Head Constable and the Investigating Officer. The learned Additional Sessions Judge has discussed the evidence in quite detail arid has also noticed the inconsequential contradictions appearing in the statements of witnesses and has come to the conclusion that the offence has been brought home to the appellant without any suspicion or doubt.

(3.) The learned counsel for the appellant has at first submitted that the mandatory provisions of Section 42 of the NDPS Act have not been complied with inasmuch as the secret information which was allegedly received by the Investigation Officer was not reduced into writing. It is pertinent to mention that the secret information was received by the Investigating Officer When he was patrolling the area and in view of the urgency of the matter he had .to take steps to arrest the appellant and he could not possibly waste his time in reducing the secret information into writing. The recovery of illicit article does not become illegal only on the ground that aparticular procedural provision of the statute is not complied with. If any requirement, which must be. fulfilled before effecting any search, is not complied with, that can be only taken notice of in order to evaluate the other evidence appearing on the record with regard to the recovery. If the other evidence appearing on the record is convincing enough to show that the recovery effected is true then non-compliance of any particular pre-requisites for effecting the recovery would not vitiate the recovery.