M. S. A. Siddiqui,j.

( 1 ) THIS appeal is directed against the judgment and the order of conviction dated 5. 12. 1995 passed by the Additional Sessions Judge, Delhi in Sessions Case No. 33/95 convicting the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act ) and sentencing him to undergo rigorous imprisonment for 12 years and to pay a fine of Rs. 1,50,000. 00 or in default to suffer further rigorous imprisonment for 2 years.

( 2 ) BRIEFLY stated the prosecution case is that on 20. 1. 1995 at about 3 p. m. while the SI Dalbir Singh (Public Witness 7) was on petrol duty he received a secret information that two persons having poppy straw powder would be coming to Delhi via old Yamuna Bridge. On this information a raiding party was organised and a nakabandi was conducted near the Flood Control Tower. At about 3. 30 a. m. the appellant and his associate Kala son of Karam Chand Bhagat were spotted near the said tower. The appellant was apprehended on the spot. He was given the option of being searched before a Gazetted Officer or a Magistrate but he declined the offer. Thereafter the gunny bag, which the appellant was carrying, was searched and it was found to contain 5 plastic packets of poppy straw powder. Five samples of 10 gms. each were drawn up and the samples and the seized contraband were converted into separate parcels and the same were sealed on the spot. The appellant was charged with an offence punishable under Section 18 of the Act and tried.

( 3 ) THE appellant abjured his guilt. The learned Additional Seions Judge on an assessment of the evidence adduced by the prosecution accepted the prosecution case and convicted and sentenced the appellant as indicated above.

( 4 ) THE evidence regarding the recovery of the alleged contraband revolves around the testimony of Head Constable Suresh Chand, (Public Witness 5), ASI Babu Ram (Public Witness 6) and ASI Dalbir Singh (Public Witness 7 ). It has come in the evidence of ASI Dalbir Singh that on 20. 1. 1995 at about 3 p. m. he received a secret information about transport of the contraband and the same was reduced in writing. Surprisingly no writing has been produced or proved before the Trial Court to substantiate the said assertion of SI Dalbir Singh (Public Witness 7 ). It has also come in the evidence of ASI Dalbir Singh that at about 3. 30 p. m. the appellant was apprehended on the spot. He was given the option (Ex. Public Witness 4/a) of being searched before a Gazetted Officer or a Magistrate but he declined the offer. Thereafter the appellant s gunny bag was searched and it was found to contain five packets of poppy straw powder weighing 10 kgs. approximately. A sample of 10 gms. each was drawn up from the said packets and the samples as well as the seized contrabands were converted into separate parcels and sealed on the spot. CFSL form was filled in on the spot and the sampled contraband alongwith the CFSL form were handed over to SHO Data Ram Public Witness 5, who deposited them in the Police Malkhana. Head Constable Suresh Chander (Public Witness 4) and ASI Babu Ram (Public Witness 6) also swear to the same effect.

( 5 ) IT may be remarked that there are certain staggering circumstances which have shaken the foundation of the prosecution to an irreparable extent. The evidence of SI Dalbir Singh (Public Witness 7) reveals that the Seizure Memo (Ex. Public Witness 4/b) and the appellant s personal search Memo (Ex. Public Witness 4/d) and the Rukka (Ex. Public Witness 2/a) were prepared on the spot. The Rukka Ex. Public Witness 2/a shows that the recovery of the contraband was made at 3. 30 p. m. and the Rukka was sent to the police station on the basis of which the FIR (Ex. Public Witness 2/b) was registered at the police station. The FIR (Ex. Public Witness 2/b) reveals that it was registered at 6. 42 p. m. Surprisingly, the Seizure - Memo (Ex. Public Witness 4/b) and the appellant s personal search Memo (

Click Here to Read the rest of this document