ZOFAR Vs. STATE

JUDGEMENT

(1.) This appeal is directed against the judgment and the order dated 23.3.1995 passer by the Additional Session Judge in Sessions Case No. 569/93 convicting 138 the appellant undersection 21 of the Narcotic Drugs and Psychotropic Substances Act (for short 'the Act') and sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh or in default to suffer further rigorous imprisonment for 6 months

(2.) Briefly stated the prosecution case is that on 3.2.1993, a police party led by S.I. Harsurender Pal Singh (P.W. 7) of Police Station Kamla Market, upon secret information received, apprehended the appellant behind Kotha No. 5207 at G.B. Road. He was given the option (Ex. Public Witness . 4/A) of being searched before a Gazetted Officer or a Magistrate. The appellant declined the officer. Thereafter S.I. Harsurender Pal Singh (P.W. 7) took the personal search of the appellant and recovered a packet containing 2 gms. of smack from his pant vide Seizure Memo (Ex. Public Witness . 4/B). The appellant was charged with an offence punishable under Section 21 of the Act and tried. The appellant abjured his guilt and alleged that a false case has been foisted on him. The learned Additional Sessions Judge, on an assessment of evidence adduced by the prosecution, accepted the prosecution case and convicted and sentenced the appellant as indicated above.

(3.) The point for determination in this appeal is whether on 3rd February, 1993, the contraband was recovered from the appellant's possession. The evidence of the prosecution pertaining to the recovery of the contraband revolves around the testimony of Constable Gajendra Singh (P.W. 4), S.H.O. P.L. Suri (P.W. 5), Laxmi Narain (P.W. 6) and Inspector Harsurender Pal Singh (P.W. 7). The panch witness Laxmi Narain (P.W. 6) has not supported the prosecution case. Inspector Harsurender Pal Singh (P.W. 7) corroborated by S.H.O. P.L. Suri (P.W. 5) and Constable Gajendra Singh (P.W. 4) testified that on 3.2.1993, he received the secret information (Ex. Public Witness .7/B) on the basis of which he apprehended the appellant behind the Kohta No. 5207 at G.B. Road, Delhi; that the appellant was given the option (Ex. Public Witness . 4/A) of being searched before a Gazetted Officer or a Magistrate, but he declined the offer and thereafter he took personal search of the appellant and recovered 2 gms. of smack from his pant vide Seizure Memo (Ex. Public Witness . 4/B). He further testified that after seizure of the contraband a representative sample was drawn up from the seized contraband and the sample as well as the remaining smack were converted into separate parcels and they were duly sealed on the spot. He also testified that the CFSL form filled up on the spot and the case property along with the CFSL form was handed over to the SHO P.L. Suri (P.W. 5) for being deposited in the police Malkhana. It has also come in the evidence of Inspector Harsurender Pal Singh Public Witness . 7 that he prepared the rukka (Ex.P.W. 1/A) on the spot and sent it to the police station on the 139 basis of which the FIR (Ex. Public Witness . 1/B) was registered at the Police Station.