IMPORTANT POINT
Where the search of an accused has been carried out at a public place and not in any building, 'conveyance or enclosed place then section 42 of the NDPS Act is not attrachted.

ORDER

S.C. Jain, J. - Facts giving rise to this appeal are that on 1-11-1987 at 4.45 p.m., a secret information was received by SI Laxami Narain Rao, when he was on patrol duty along with other police officials near Mahipalpur Chowk that one Om Parkash @ Omi @ Fauzi resident of village Bijwasan who was dealing in sale of charasl opium would go to Bijwasan from national high way along with charas. On receipt of this information, Shri Laxami Narain Rao requested some persons from public to join the raiding party but they refused. As the time was short, a raiding party consisting of police officials was organised and the party proceeded towards national highway near Mahipalpur crossing. Nakabandi was arranged there. At5.1 0 p.m. on the pointing of the informer, Om Parkash @ Omi @ Fauzi was apprehended. He was having a bag in his right hand. The secret information was disclosed to him and it was told to him that they would take his search and that if he so wanted the search could be taken in the presence of a gazetted officer but on his refusal, he was searched by Shri. Laxami Narain Rao in the presence of other members of the raiding party. From the bag (Ex.P 1) which the appellant was carrying with him, two polythene packets and three small size momy papers containing charas were recovered. From one packet 21 balls of charas and from the other 16 balls of charas and from momy papers three rectangular shape bars of charas were recovered. On weighment, 21 balls were found to be 3 kg and 16 balls were found to be 2 kg and the 3 rectangular bar were found to be 1 kg and 500 grams. Thus in all 6 kg 500 grams of charas was recovered from the possession of Om Parkash @ Omi @ Fauzi. 20 grams each was taken as sample from the recovered charas which were made in five samples as samples No.1, 2, 3, 4, and 5. These five samples were scaled in one parcel with the seal of 'BS' and three parcels were prepared of the remaining charas and which was also sealed with the seal of 'BS'. Form of CFSL was filled in on the spot and the specimen seal of BS was also affixed thereon. On the basis of Rukka sent from the site, F.I.R. was registered. The samples, the remaining charas duly sealed with the seal of BS and the CFSL form were produced before Sri Jai Bhagwan Malik, SHO, P.S. Mehrauli, who also affixed his seal of 'JBM' on all these parcels and also affixed his specimen seal on the CFSL form. All these parcels duly scaled with the seal of BS and IBM were deposited in the Malkhana of PS Mehrauli. During investigation, the sample parcels duly sealed with the seals of BS and JBM were sent to CFSL for chemical test. From the report of CFSL (Ex. PW9/C) it was found that samples S 1 to S5 gave positive test for charas.

During investigation, it also transpired that one Sher Singh @ Shera was also involved in that business of sale of charas/opium. He was also arrested and challened along with this appellant for offences punishable under Sections 20 and 29 of the NDPS Act.

2. The trial Court acquitted Sher Singh @ Shera of the charge levelled against him. However, the appellant was found guilty for an offence punishable under Section 20, Part 11 of the NDPS Act for having in his possession 6 kg 500 grams of charas in contravention of Section 8 of the NDPS Act and he was convicted for the said offence and sentenced to undergo Rigorous Imprisonment for 12 years and to pay a fine of Rs. 1 lakh and in default of payment of fine to further undergo Rigorous Imprisonment for one year for the said offence by the Addl. Sessions Judge Delhi by his judgment and order dated 8-8-1989 and 10-8-1989.

3. Aggrieved, the appellant has filed this appeal. Mr. D.R. Sethi, learned counsel for the appellant, submitted that the provisions of NDPS Act being mandatory have to be strictly construed especially in view of the minimum sentence of imprisonment and fine prescribed under the Act leaving no discretion to the trial court to impose a lesser sentence of imprisonment or fine in