JAGDISH Vs. STATE OF HARYANA

JUDGEMENT

(1.) Challenge in this appeal is the judgment and order dated 10.9.2005 passed by Sh. V.P. Bishnoi, Special Judge, Rohtak, vide which the accused-appellant has been convicted under Section 17 of the NDPS Act (hereinafter to be referred to as 'the NDPS Act'), for having been found in possession of 10 grams of smack, without any licence or permit and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/- and in default of payment of fine to further undergo rigorous imprisonment for three months.

(2.) As per allegation of the prosecution, on 8.5.2005 at about 5.00/5.30 p.m., police party headed by Kamlesh Kumar SI of CIA-II, Rohtak was present at Gate No.1 of M.D. University situated on Delhi Road, Rohtak, in connection with patrolling and crime checking. In the meantime, SI received a secret information to the effect that a fatty person of the aged about 45-46 years wearing pant shirt was se1ling Smack at Delhi-Bye Pass, Rohtak and that he could be arrested if a timely raid was effected. The SI sent intimation to SHO, Police Station Civil Lines, Rohtak through C. Taarif Singh, as required under Section 42 of the NDPS Act. On the basis of which DDR was registered and SHO was informed on telephone. On the other hand, SI Kamlesh Kumar joined the informant in the police party and proceeded towards Delhi Bye-Pass, Rohtak. At the instance of informant Kamlesh Kumar apprehended the accused while standing on Delhi Road in between Gate No.1 of MDU and Delhi Bye-Pass, Rohtak. On interrogation, the accused disclosed his identity. Kamlesh Kumar SI informed the accused that he was willing to take his search under the suspicion that he was possessing some Narcotic Substance. He also informed the accused that he has got the right to opt to give his search either in the presence of the Gazetted Officer or a Magistrate. Notice was served to the accused. Accused appended his signatures in token of its receipt. The notice was attested by Kulbir Singh ASI and Sant Ram HC. Accused submitted his reply to the effect that he was willing to get his search conducted in the presence of a Gazetted Officer. The reply was also signed by the accused and was attested by the above named two witnesses and by Kamlesh Kumar SI. In view of the option given by the accused, Kamlesh Kumar S1 informed M.I. Khan, the then DSP, City Rohtak on telephone and requested him to come at the spot, so that the search of the accused may be conducted. M.I. Khan, DSP alongwith his staff on his vehicle came at the spot. He disclosed his identity before the accused. Then on directions of the DSP, Kamlesh Kumar SI conducted the personal search of the accused and recovered Smack wrapped in a poly paper form the right side pocket of the pants of the accused. The Smack was weighed. It was found to be 10 grams. Out of that Smack, 2 grams Smack was separated as sample on a small poly paper. The remaining Smack was put in a plastic container and was converted into a parcel. The sample of the Smack was also put in a small plastic container and was converted into a separate parcel.

(3.) Both the parcels were sealed separately with seal KS of Kamlesh Kumar and MIK of the DSP. Specimen of both the seal were taken. Seal KS was handed over to Kulbir Singh ASI and seal MIK was returned to the DSP. Thereafter, both the parcels so prepared and the specimen seals impression were taken into possession by Kamlesh Kumar SI vide recovery memo which was attested by M.I. Khan DSP, Kulbir Singh ASl and Sant Ram HC. Since, the accused had no licence or permit to possess the Smack, therefore, ruqa was sent for registration of case through C.Parshant Kumar. On the basis of which, formal FIR was registered. The parcels of the case property and sample alongwith specimen seals impressions were presented before the MMHC of the Police Station. On 12.5.2004, the parcel of the sample alongwith the specimen seals impressions were sent to Director, FSL, Madhuban by Kulbir Singh MMHC himself. He deposited the parcel on the same day with the office of Director, FSL, Madhuban. The Assistant Director, FSL, Madhuban analysed the sample and declared it to be that of Smack.