( 1 ) THIS appeal is directed against the judgment of Mr. S. L. Khanna, Additional Sessions Judge, New Delhi dated 5th February, 1991 arising cut of a Sessions case No. 36188. The basic facts which are necessary to dispose of this appeal are recapetulated as under:

( 2 ) THE accused appellant was charged with an offence punishable under Section 21 of Narcotic Drug and Phychotropic Substances Act. 1985 for having been found in possession of 150 grams of Heroin.

( 3 ) ON 23rd December. 1986 the Sub Inspector Surinder Singh of Crime Branch,. Prosecution Witness No. 7 received a secret information in his office that three persons would come on a scooter near Shivaji Restaurant (Bhagat Singh Market) carrying Heroin and they would supply the Heroin to their known parties. Inspector Surinder Singh reduced the information into writing and. sent a copy of the same to the Assistant Commissioner of Police concerned.

( 4 ) INSPECTOR Surinder Singh constituted a raiding party consisting of S. I. Om Prakash (Public Witness 4), ASI Jagpal Singh, Head Constable Harbir Singh and some constables and reached near the Shivaji Restaurant, Bhagat Singh Market. The members of the raiding party assembled near Arora Pan Bhandar at Bhagat Singh Market near Shivaji Stadium. S. I. Sukesh Kumar alongwith a constable of Police Station Mandir Marg who was on patrol duty in the area met the raiding party and he was also apprised of the secret information. Naqabandi was effected outside Shivaji Restaurant at about 5. 30 p. m. Three persons arrived on two wheeler scooter which was stopped at the pointing out of the informer. The scooter was being driven by Surjit Singh while accused Munni Lal alongwith Sunil Kumar were sitting on the pillion seat of the scooter. Inspector Surinder Singh (Public Witness 7) disclosed the identity of the members of the raiding party to accused Munni Lal and his companions and about the information of their being in possession of Heroin.

( 5 ) ACCORDING to the prosecution story, though no notice under Section 50 NDPS Act in writing was given but inspector Surinder Singh, Public Witness 7 orally asked the accused and his companion whether they wanted to be searched before a Gazetted Officer or a Magistrate. Munni Lal, appellant and his other two companions declined the offer. Thereafter, Surinder Singh conducted search of accused Munni Lal and the search of Surjit Singh was conducted by ASI Om Prakash and search of Sunil Kumar was conducted by ASI Jagpal Singh. Accused Munni Lal was found to be wearing a military coloured jacket and from the right side pocket of his jacket Heroin contained in polythene paper and tied in a handkerchief was recovered which weighed about 150 gms out of that 10 gms was separated as sample and converted into a parcel with the seal of S. S. The remaining Heroin was put in the same polythene paper and the handkerchief and thereafter it was sealed in the separate parcel with the seal of S. S.

( 6 ) HEROIN was also recovered from Surjit Singh and Sunil Kumar. Inspector Surinder Singh thereafter prepared a CFSL Form and affixed specimen of the seal of S. S. on the said Form and handed over after using the same to the Sub Inspector 0m Prakash. Both the parcels contained the sample of Heroin and the remaining Heroin was taken into possession vide memo Exhibit PW4a which was attested by S. I. Om Prakash (Public Witness 4) and A. S. I. Jagpal Singh.

( 7 ) INSPECTOR Surinder Singh recorded Ruqqa Exhibit Public Witness 7b and directed head constable Harbir Singh (Public Witness 6) to take the case property, CFSL Form, copy of the seizure memo and the Ruqqa to the Police Station, Mandir Marg and asked him to produce the case property and the CFSL Form before the Duty Officer for the purposes of registration of the case. Accordingly head constable Harbir Singh produced the case property and the C. F. S. L. Form before the S. H. O. Inspector P. S. Patwal (Public Witness 5) affixed his seal of ASP on bo