M. S. A. Siddiqui, J.

( 1 ) THIS appeal is directed against the judgment and order dated 27. 11. 1995 passed by the Additional Sessions Judge, Delhi in Sessions Case No. 577/93 convicting the appellant under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act") and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of rupees one lac or in default to suffer further rigorous imprisonment for six months.

( 2 ) SHORN of Verbiage, the prosecution case is that on 15. 3. 1993, a police party led by sub-Inspector Narender Tyagi (Public Witness -7), upon information received, apprehended the appellant near Yamuna Bridge. He was given the option of being searched by Sub- Inspector Narender Tyagi (Public Witness -7) before a Gazetted Officer or a Magistrate. The appellant declined the offer. He was then searched in the presence of the Manzar Hussain (Public Witness -6), Head Constable Nafe Singh (Public Witness -5) and Inspector Raja Ram Yadav (Public Witness -1) as a result whereof sixty five grams of smack was recovered from his possession. the appellant was charged with an offence punishable under Section 21 of the Act.

( 3 ) THE appellant abjured his guilt and alleged that a false case has been foisted on him. The learned Additional Sessions Judge, on an assessment of evidence adduced by the prosecution accepted the prosecution case and convicted and sentenced the appellant as indicated above.

( 4 ) THOUGH a number of submissions were made by the learned counsel for the appellant, I need not detain myself to deal with all those submissions as in my opinion, there is force in the argument of the learned counsel that the prosecution has failed to prove that the contraband was seized in accordance with the provisions of Section 50 of the Act. The evidence of the prosecution pertaining to the recovery of the contraband revolves around the testimony of Head Constable Nafe Singh (Public Witness -5) and Sub- Inspector Narender Tyagi (Public Witness -7 ). The only independent "panch" witness, namely, Manzar Hussain (Public Witness -6) has not supported the prosecution evidence. Sub-Inspector Narender Tyagi (Public Witness -7) corroborated by Head Constable Nafe Singh (Public Witness -5) testified that on 15. 3. 1993, at about 9. 40 p. m. , while he was on patrolling duty near the Navjyoti Public School, Yamuna Pusta, he received a secret information that a boy having smack in his possession would be coming from the side of Transyamuna. He, therefore, reduced the said information into writing (Ex. PW-7/b) and organized a raiding party. At about 10. 20 p. m. to 10. 30 p. m. , the appellant was spotted near the Yamuna Bridge and was apprehended on the spot. He was given the option (Ex. PW-5/a) of being searched before a Gazetted Officer or a Magistrate. The appellant declined the offer. Thereafter, he took search of the appellant and recovered sixty five grams of smack from his possession appellant vide seizure memo (Ex. PW-1/a ). A sample was drawn from the seized contraband. The sample as well as the remaining smack were converted into separate parcels and they were duly sealed on the spot. CFSL form was duly filled up. In the meanwhile, Inspector Raja Ram Yadav (Public Witness -1) also came on the spot, who took the sealed parcels along with CFSL Form in his custody and deposited them in the Police Mal Khana. The evidence of Sub-Inspector Narender Tyagi (Public Witness -7) further shows that the rukka (Ex. PW-R/a) was sent to the police station on the basis of which the FIR (Ex. PW-4/a) was registered at the police station Kotwali. The rukka (Ex. PW-4/a) reveals that it was sent to the police station on 16. 3. 1993 at 1. 15 a. m. and the FIR was registered at 1. 20 a. m. Surprisingly, the secret information (Ex. PW-7/a) received by the Sub-Inspector Narender Kumar Tyagi (Public Witness. 7), the notice under Section 50 of the Act (Ex. PW-5/a) alleged to have been served on th

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