RAJESH Vs. STATE

JUDGEMENT

(1.) The appellant has come up in appeal, feeling aggrieved by his conviction for offence under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act), by judgment dated 1st April, 1987, recorded by the Additional Sessions Judge, New Delhi, and order of sentence of 9th April, 1987 whereunder he was sentenced to R. 1. for ten years with fine of Rs. 1,00,000 sentence in default being R.I. for further two years.

(2.) The appeal was filed through Mr. M. S. Siddiqui, Advocate, but when it was taken up for hearing, he stated that after the appeal was filed, the papers were taken away by father of the appellant. and he has no instructions. The appellant on being produced from custody pleaded that he has no means to engage a counsel, and made a request for being provided with a State counsel. It was considered expedient to appoint Shri M. S. Siddiqui, Advocate as amicus curiae, on account of his having filed the appeal, and thus being familiar with facts of. the case. Accordingly Shri M. S. Siddiqui has argued the appeal as amicus curiae whereas Ms. Usha Kumar appeared for the State.

(3.) Mr, Siddiqui assailed the findings of the learned trial Judge from a number of angles the crux of arguments being that whole case of the prosecution was full of suspicion, on account of number of infirmities, and statutory lapses, apparent on the face of record. He pointed out that although the accused had been apprehended on the basis of alleged secret information, but no such record was kept nor any written report sent by the investigating officer to his immediate officer in charge, as required by sub-section (2) of section 42 of the Act. He further argued that the evidence on record itself is dubious because of failure on the part of the investigating officer to associate any public witness although there is evidence that they were available. He then contended that the provisions of the Act in regard to the scaling of the seized articles have been wholly violated, and that there is no reliable evidence to the effect that the seal of the SHO was in fact affixed on the sample, as well as parcels of the remaining substance, and that otherwise also, the investigating officer has gone by unwarranted assumption by straightway characterising the seized commodity as 'smack' without even mentioning the colour or condition Thereof. He pointed. out that invariably whenever such a substance is seized, casa is taken to make a note in the seizure memo as well as in the rukka as to the colour of the substance, and that without the chemical test conducted by the expert, the investigating officer had no reason to describe the substance as to be 'smack' and that this speaks of the prejudicial manner in which the whole investigation was conducted.