P.S. TEJI, J.

1. Aggrieved by the judgment of conviction dated 12th July, 2001 convicting the appellant finding him guilty under Sections 21/61/85 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act, 1985) and order on sentence dated 12th July, 2001 vide which the sentence was passed against the appellant to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- for the offence punishable under Sections 21 of the NDPS Act, in default of payment of fine, convict was ordered to further undergo simple imprisonment for three years, the present appeal has been filed.

2. The facts in brief are that a secret information was received on the basis of which the police on 8th September, 1998 at about 01.35 p.m., apprehended the accused Kanwar Pal@Mama at Nizamuddin side from Platform No.12, New Delhi Railway Station (NDRS). Notice under Section 50 of the NDPS Act, 1985 was served to which the accused Kanwar Pal@Mama refused to exercise the said option and his refusal was recorded in writing. Thereafter, on the direction of SHO, raid was conducted; search of the accused Kanwar Pal@Mama was effected and a polythene packet containing a bigger paper packet besides other ten small packets containing contraband was recovered from the right side pocket of the wearing pant of the accused, which when opened was found to contain smack to the tune of five grams in total. Out of five gram smack recovered, one gram was taken out as sample which was kept in a piece of paper while the remaining smack was kept in the paper of the larger packet along with the ten paper packets which were converted into two separate parcels. It appears from the record that the case property was seized vide seizure memo Exh.PW 1/C along with CFSL form; rukka was prepared (Ex.PW3/A); FIR No.1039/98 was registered; case property was handed over to the SHO through Ct.Amar Singh; accused was arrested; the sample was chemically analysed and after completion of the investigation, accused was sent for trial to the court. It further emerges from the record that charge under Sections 21/61/85 of the NDPS Act was framed against the accused to which he pleaded not guilty and claimed trial.

3. The prosecution had examined as many as eleven prosecution witnesses namely PW 1 Ct.Amar Singh; PW 2 HC Vinod Kumar; PW 3 ASI Joginder Singh; PW 4 Dr. R.M. Tripathi; PW 5 Inspt.Rajender Singh; PW 6 HC Shashi Bhushan; PW 7 HC Ashok Kumar & PW 8 Ct.Ramsharan Meena. The statement of the accused Kanwar Pal@Mama was recorded under Section 313 of the Cr.P.C.

4. The appellant was held guilty by the learned Special Judge, Delhi and by an order dated 12th July, 2001, sentenced to undergo rigorous imprisonment for ten years and fined rupees one lakh for the offence punishable under Section 21 of the NDPS Act, 1985. In default of payment of fine, the convict was to further undergo simple imprisonment for a period of three years.

5. The learned counsel for the appellant stated that the appellant was apprehended from a busy place of platform no.12 of New Delhi Railway Station, however, only one public witness i.e. Niaz Ahmed had been cited that too during trial. Therefore, no sincere effort was made to join other independent public witnesses. Mandatory provisions of Section 50 of the NDPS Act were not followed inasmuch as it was not mentioned in the notice that the accused had the right to call a Gazetted Officer or a Magistrate for the purpose of his search. Notice under Section 50 as well as the recovery memo bore the number of the FIR which reflected that these documents were prepared after the registration of the case. CFSL form was neither prepared at the spot nor deposited in the malkhana nor sent to the CFSL office. Non-compliance of provisions of Sections 42, 52, 53 & 57 of the NDPS Act. Tampering in the pullandas before reaching the hands of the analyst. Investigation after recovery had not been transferred to the ot