MALIK SHARIF-UD-DIN, J. (ORAL)

( 1 ) THE appellant was convicted under section 21 of the Narcotic Drugs and Psychotrpic Substances Act, 1985 (hereinafter for short known as NDPS ACT) and was sentenced to undergo R. I. for 10 years and also to the fine of Rs. one lakh and in default to further undergo R. 1. for four months. This order Was passed by Shri S. P. Singh Chaudhari Addl. Sessions Judge, Delhi on 3rd May, 1986.

( 2 ). I may notice the facts which are that on 15th November, 1985 at about 4. 15 PM Public Witness 7 S. I. Rajinder Singh, who was on duty at Palika Bazar, Connaught Place, accompanied by Public Witness 5 Vijender Singh, Head Constable and Public Witness 6 Sajan Singh Constable is said to have received a secret information in pursuance of which they caught hold of the appellant from the circular park in Connaught Place at the pointing out of the informer. The appellant at that time was found smoking a eigarette allegedly containing heroin and on search four grains of heroin was allegedly recovered from his person. The prosecution case further is that out of the four grams, two grams of heroin was taken as sample and both parts were sealed with the seal of Rajinder. Singh S. I. bearing the words r. S. and that the seized articles together with the samples were duly deposited in Malkhana and on chemical examination by Public Witness 4 Shri N. K. Parshad it Was found to be heroin.

( 3 ) THE entire ease of the prosecution rests on the testimony of Public Witness 5 H. C. Vijender Singh, Public Witness 6 Constable Sajan Singh and PW7, S. I. Rajinder Singh, all police officials. There is, of course, no doubt that all of them have fully supported the prosecution case and if their testimony is to betrusted then there is no escape from the conclusion that the appellant is involved in the Commission of this crime.

( 4 ) MRS. Meera Bhatia, however, urged that it is a very dangerous situation fraught with grave consequences, and the court should not rely on the testimony of a few police officials in the absence of corroboration by other testimony from an independent source. Her contention is that there is no reason why at the time of search these police officials should not have complied with sub-section (4) of section 100 Cr. P. C. which in the light of section 51 of NDPS Act is applicable to the case. Mrs. Meera further urges that considering the object of the NDPS Act and considering the heavy punishment provided for the offence, obviously the legislature intended to be strict in such matters but simultaneously it provided certain safeguards which in view of the strict nature of the legislation have to be followed strictly. Her contention is that if there is a deliberate attempt to ignore the safeguards, the matter has to be approached with great deal of caution and should be treated as not free from doubt.

( 5 ) I personally feel that the learned counsel fear the appellant is justified in raising these contentions. In view of the nature of punishment provided for the offence under the NDPS Act the legislature has deliberately made. certain provisions to afford safeguard so that innocent persons are not harassed. If the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach, their action with reservations. The matter has to be viewed with suspicion if the provisions of taw are not strictly complied with and the least that can be said is that it is so done with an oblique motive. In the case in hand the seizure and the arrest have been made under section 43 of NDPS Act. Admittedly, no public witness was involved in the matter of search and seizure as envisaged by sub-section (4) of section 100 Criminal Procedure Code. The explanation offered is that public witnesses were requested but they declined. to co-operate. My experience is that this explanation is now being offered in almost all cases. In the circumstances of a particular case it may so happen that fo

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