IMPORTANT POINT
Section 55 of NDPS Act does not prohibit taking of sample by the investigating officer at the spot and the only requirement contemplated by it is that the case property should be presented to the SHO who should take custody of the same and put his seal on it & deposit the same in Malkhana.

JUDGMENT

P.K. Bahri, J. - The appellant-Bennehard J. Framous @ Ortege Francis, a French national, who had come to India as a tourist, has been convicted vide judgment dated April 26, 1989, of an Additional Sessions Judge, New Delhi, for an offence punishable under Section 210f the Narcotic Drugs and Psychotropic Substances Act,

1985 (for short 'the NDPS Act') and vide order of the even date has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to undergo further rigorous imprisonment for six months. He has filed this appeal challenging his conviction and sentence.

2. Elaborate arguments have been advanced by Mr. D.N. Goburdhan, Advocate, on behalf of the appellant and Shri R.N. Kapur, Advocate, on behalf of the State.

3. Facts of the case, in brief, are that during the intervening night of November 8 and November 9, 1988, the a0ppellant was apprehended by Ms. Sonia, an Italian, who was leaving along with a group for Frankfurt in Lufthansa Flight which was to depart at about 3.15 A.M. while the appellant was attempting to steal two hand bags belonging to one of the members of the said group. SI Munshi Ram, who was on duty in the Departure Hall of the Indira Gandhi International Air port, had arrived at the sot on hearing the commotion and ACP Zile Singh P.W. 1, P.W. 2 Rajesh Mahajan (a Travel Agent who was assisting the said group of foreigners in cheek-up proceedings), P.W. 7 SI Subhash Chand Bakshi then posted in the Police Station of the Airport, had arrived at the spot. A case under Section 379 read with Section 511 of the Indian Penal Code (for short the IPC’) was registered against the appellant vide F.I.R. No. 387 of the said date.

It is the case of the prosecution that while the appellant was being personally searched on being arrested in that case, he was found to be having a black pouch strung across his neck checking of which revealed that it contained one polythene small packet which contained brown sugar (smack) which on weighment was found to be 30 gms. A sample and the remaining drug were converted into sealed parcels and taken into possession vide seizure memo Ex. P.W. 1/A which was duly signed by Rajesh Mahajan, a public witness and ACP Zile Singh. The seal after use was hand dove to Shri Rajesh Mahajan. This search took place at about 2.45 A.M. Rukka Ex. P.W. 5/A was prepared and was sent for registration at 2.55 A.M. The case property was handed over to Head Constable Satbir Singh P.W. 8 who produced the same before the SHO. V.P. Sharma and SHO. Put his seals on the case pro0pertry and also on the Central Forensic Science Laboratory (for short’ the CFSL’) Form and the same were deposited with the Malkhana Moharrir P.W. 3 who made necessary entries in the Malkhana Register. The sample and the CFSL Form were handed over to Constable Mohinder Singh P.W.6 who deposited the same intact with the CFSL and after the sample was examined and a report was giver by the CFSL, he brought back the remnants of the sample duty sealed with the seal of the CFSL and deposited the same in the Malkhana. Report Ex. P. W. 7/C was given by the CFSL to the effect that the sample gave positive test for heroin.

4. The prosecution case was sought to be proved through the statements of P.W. 1 ACP Zile Singh, public witness P.W. 2 Rajesh Mahajan and Investigating Officer P.W. 7 Subhash Chand Bakshi, the other witnesses being formal in nature.

5. The appellant in his examination under Section 313 of the Code of Criminal Procedure admitted the material facts of his being apprehended while he was attempting to take away two bags belonging to another passenger but he took the plea that at that time he was drunk and by mistake had taken those bags. He did not deny the suggestion put to him that he was apprehended by Sonia with the help of Rajesh Mahajan and ACP Zile Singh and SI Munshi Ram. He also admitted that he was arrested and his personal search was taken an