Compliance with NDPS Act provisions and the credibility of prosecution witnesses are crucial in establishing guilt.

Suresh Kait, J.

1. By way of the present appeal filed under Section 374(2) of Cr.P.C. appellant seeks directions thereby setting aside the impugned judgment dated 24.03.2014, whereby he was held guilty for the offences punishable under Sections 15/61/85 of NDPS Act.

2. Further seeks directions thereby setting aside the order on sentence dated 01.04.2014, whereby he was sentenced to undergo RI for four years with fine of Rs.10,000/- and in default of payment of fine, he was further sentenced to undergo SI for six months for the offence punishable under Section 15 of NDPS Act.

3. The aforesaid case was registered on the written complaint of Ct. Ravinder of PS-Kashmere Gate alleging therein that on 13.09.2012 at about 7.45 am when he was performing his duty at the out gate of ISBT, he saw the appellant coming from the side of foot-over Bridge having a Fauji Colour Bag on his left shoulder and on seeing the police constable he took u-turn and started taking fast steps. He was apprehended by the Constable named above on the basis of suspicion and was inquired and instructed to get his bag checked. However, the appellant started making excuses. But when Ct. Ravinder opened the above-noted bag, he found some powder like substance in his bag. Information in this regard was given in PP, ISBT. Accordingly, ASI Mahender Singh reached at the spot and recorded the statement of Ct. Ravinder and also verified the facts and circumstances from the appellant, but he could not give any satisfactory reply. The bag was checked and it was found containing the post powder and on being weighed on digital weighing machine, it was found to be of 16 Kg. One Kg of the sample was taken out from it and kept in a white polythene, mouth of which was closed with Stapler and was sent to FSL, Rohini for expert opinion.

4. Accordingly, case under Sections 15/61/85 of NDPS Act was registered against the appellant. Thereafter, on completion of investigation and compliance of the provisions of NDPS Act, police filed the chargesheet. Charges were framed to which he pleaded not guilty and claimed trial.

5. In order to prove its case, prosecution has examined 9 witnesses. Thereafter statement under Section 313 Cr.P.C. of the appellant was also recorded wherein the entire incriminating evidence has been put forth and explained to him to which he claimed to be an innocent person, however did not lead any defence evidence.

6. Ld. Counsel appearing on behalf of the petitioner submitted that there are clear contradictions in the quantity of alleged recovery of poppy straw from the appellant because as per the prosecution story and PW5, the quantity of alleged poppy straw when weighed was 16 kg but as per DD No. 19A, dated 13.09.2012, Ex.PW4/A, the quantity is of 15 kgs. Moreover, as per FSL Form No. FSL/Delhi/FM/03/23/10.02.2012 the weight of sample of alleged poppy straw was 1098.80 gm approx. with polythene.

7. Ld. Counsel for the appellant submitted that ld. Trial Court completely failed to appreciate that though the alleged recovery and arrest has been made from a public place, however no public witness was asked to join the investigation despite the fact that there were buses and its driver in the ISBT at the time of incident and the place where buses were stationed in ISBT is about 200 meter from the place of incident, which can be covered within 5 minutes. She further submitted that there were contradictory statements of the witnesses on this issue because as per the PW3, no security guards were there at the time of arrest of the appellant whereas as per the deposition of the PW8, the distance between the spot and the place where security guards remained on duty at out gate was approximately 50 Yds. and it hardly takes 2-4 minutes to reach. Despite, no security guard was requested to join the investigation. It establishes that no contraband was recovered from possession of the appellant and the appellant has been falsely implicated in this case.

8. She further sub