Manmohan, J.

1. The present appeal has been filed seeking to set aside the judgment and order dated 19th October, 1993 passed by learned Additional Sessions Judge, Delhi Mr. Kuldeep Singh arising out of FIR No. 42/1988 registered with PS Hauz Quazi, Delhi.

2. Relevant facts of this case are that on 21st February, 1988 at about 2 pm when SHO Mr. Ram Singh Chauhan PW-3 along with ASI Ajit Singh, Investigating Officer PW-8 were on patrolling duty, they received secret information that a sardar carrying smack wearing a black coloured turban and coca cola coloured jersey, would come from Jama Masjid’s side and proceed towards Farash Khana.

3. At about 2.20 pm a raiding party was formed and a nakabandi of the area was carried out. The prosecution’s version is that a number of passersby were asked to join the raiding party as independent witnesses, but as the shops in the area were closed on account of holiday only Mr. Gopal Singh PW-4, a TSR Driver agreed to join the raiding party.

4. At about 2.45 PM the Appellant/Accused was seen walking on the Chawri Bazar road with a blue coloured raxene bag in his right hand. On being identified by the informer, the Appellant/Accused was apprehended and he was given an option to be searched before a Gazetted Officer or a Magistrate in accordance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’).However, as the Appellant/Accused did not give any response to the search option, SHO Mr. Ram Singh Chauhan requested ACP Baljit Singh PW6 to reach the spot. At about 3.15 pm the ACP reached the spot and once again gave an option to the Appellant/Accused to be searched in the presence of a Magistrate, but as the Appellant/Accused refused the said option, the ACP who is a Gazetted Officer, recorded this refusal. A certificate to that effect issued by ACP Baljit Singh is marked Ex. PW-3/A.

5. Thereafter the bag of the Appellant/Accused was searched and it was found to contain four packets of heroin, weighing one kilo gram each. After drawing samples of five grams from each of the packets, the remaining smack/heroin along with each of the four sample packets were sealed with the seals of ‘ASP’ and ‘RS’ of ASI Ajit Singh and SHO Ram Singh respectively. While the seal ‘ASP’ was handed over to Ct. Jai Singh PW-5, the Second seal of ‘RS’ remained with SHO Ram Singh himself.

6. Admittedly, a CFSL form was immediately filled at the time of search. Even ‘Rukka’ which is exhibited as Mark ‘A’ and which is the basis on which the First Information Report No. 42/1988 was registered, mentions that a CFSL form was filled. The Appellant/Accused was arrested under Sections 22, 61 and 85 of the NDPS Act and according to the prosecution, the case property namely sealed samples, sealed packets of heroin and accompanying documents were deposited in Malkhana on 21st February, 1988 at 5.45 PM. However, Register No. 19 was only signed by the Investigating Officer and not by the SHO.

7. On 22nd February, 1988 the Appellant/Accused was produced before a Magistrate and was remanded to custody. On 23rd February, 1988 the four seized samples were deposited for analysis and verification with the office of CFSL by HC Jai Singh.

8. On 18th March, 1988 the CFSL in its report stated that the four samples had tested positive for heroin. After receiving the said report the police filed a challan against the Appellant/Accused.

9. During the trial, the prosecution examined eight witnesses namely Duty Officer SI Dharam Singh PW-1, Malkhana Moharrar Ct. Jaswant Singh PW-2, SHO Inspector Ram Singh Chauhan PW-3, Mr. Gopal Singh PW-4, Ct. Jai Singh PW-5, ACP Baljit Singh PW-6, Ct. Suraj Pal PW-7and IO ASI Ajit Singh PW-8.The Appellant/Accused did not lead any evidence but in his statement under Section 313 Cr. P.C. claimed that he had been falsely implicated.

.10. On 19th October, 1993 the trial court convicted the Appellant/Accused under Sections 21, 61 and 85 of the NDPS Ac