( 1 ) THIS criminal appeal is directed against the judgment and order of the Special Judge, Delhi in Sessions Case No. 3/96 dated 25. 9. 1999 whereby the learned Special Judge has held the appellant guilty under Sections 21/65/85 of the NDPS Act, 1985 and order dated 29. 9. 1999 whereby the learned Special Judge sentenced the appellant to undergo rigorous imprisonment for ten years together with a fine of rupees one lac and in default thereof to undergo further simple imprisonment for two years.

( 2 ) THE case of the prosecution is that on 1. 11. 1995 at about 12. 30 p. m. , while SI Ram Avtar was going to his office at PG Cell, Rajouri Garden, Delhi, he received a secret information that a person who sells Smack will come on a two-wheeler scooter in Krishna Park Extn. , Tilak Nagar, Delhi and if a raid is conducted, a large quantity of Smack may be recovered from his possession.

( 3 ) THIS information was reduced into writing vide DD No. 8. A raiding party was constituted, which reached Krishna Market Extn. At about 4. 30 p. m. , at the instance of the secret informer a two-wheeler scooter HR-14-2191 was apprehended and two persons, driver as also the pillion rider were detained. It is stated by the prosecution that the person driving the scooter ran away from the site leaving the scooter but was chased, over-powered at a distance of about 200 yards and brought to the site where the pillion rider was standing. The driver is Anup Singh while the pillion rider is Puran Singh. It is the further case of the prosecution that a notice under Section 50 of the NDPS Act was served upon Puran Singh, who declined to be searched in the presence of a Magistrate or a Gazetted Officer. Since the accused declined search before a Magistrate or a Gazetted Officer, his search was conducted by SI Ram Avtar, who found from the back side pocket of Puran Singh s underwear, 8 white polythene packets and on checking he suspected that the same contained Smack and that all the contents of the 8 packets were collectively weighed and found to be 400 grams. Out of which 10 grams was separated as sample and the remaining Smack and sample were converted into two separate parcels, both parcels were sealed with the seal of RAS and KL, form CFSL was also filled in and impression of the seals was affixed on it and the seals were given to a public witness Jitender Singh. Both parcels and the form were sealed and handed over to the SHO for safe custody.

( 4 ) SEARCH was conducted on Anup Singh @ Ajit Singh but nothing incriminating was recovered from his possession. A sample was sent for testing to the laboratory at Chandigarh which tested positive for Smack. Charge under Section 21 of the NDPS Act was framed against Puran Singh for having possession of grams of Smack on 1. 11. 1995 while Anup Singh @ Ajit Singh was charged for the offence under Sections 21 /29 of the Act for transporting the Smack in possession of Puran sitting on the pillion on the aforesaid scooter on 1. 11. 1995.

( 5 ) THE prosecution, in order to prove its case, examined as many as 10 witnesses and closed the case. Learned Counsel for the appellant has argued before me that this is a case where there is non-compliance of Section 42 (2) of the Act as also the Section 50. Both of which are mandatory provisions and violation thereof would render the trial vitiated. He has drawn my attention to Public Witness 8 and Public Witness 10, who apparently are the same person, namely, SI Ram Avtar. SI Ram Avtar as Public Witness 8 states that he received information from an informer that a supplier of Smack can be apprehended at Krishna Park Extn. , Tilak Nagar, Delhi, which information was given to Senior Officer Inspector Sardar Singh and thereafter reduced the information in the rojnamcha at DD No. 8. This witness reappears as Public Witness 10 and repeats the above deposition by adding that thereafter he alongwith Inspector Sardar Singh and other staff including informer reached Krishna P