JUDGMENT

Indermeet Kaur, J. This appeal is directed against the impugned judgment and order of sentence dated 18.02.2012 and 29.02.2012 respectively wherein the appellant stands convicted under Section 21(C) of the Narcotic and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). He had been sentenced to undergo RI for a period of 10 years and to pay a fine of Rs.1,00,000/- in default of payment of fine to undergo RI for 4 months.

2. The nominal roll of the appellant reflects that as on date he has undergone incarceration of about 4 years and 10 months; remissions being inapplicable to a convict under the NDPS Act.

3. The version of the prosecution is that pursuant to a secret information received by SI Bhagwan Singh (PW-9) that the accused would come near Masjid at Lahori Gate between 2.00 p.m. to 2.30 p.m. on 24.11.2011 a raiding party was constituted. The members of the raiding party included SI Baghwan Singh (PW-9), H.C. Kanwal Singh (PW-2), H.C.Mahesh Kumar (PW-3) and SI Rajbir Singh (PW-5). The accused was seen coming from the side of railway track; he had an orange coloured polythene bag on his right hand on the pointing out by the secret informer the appellant was apprehended. Before taking his search a notice (Ex.PW-2/A) under Section 50 of the NDPS Act was served upon the appellant. From the search of the appellant and on checking the polythene, one polythene tied with rubber band containing mud colour powder was recovered. When the powder was tested on the test kit and same was tested positive for heroin. The total weight of the powder was 750 grams. Two samples of 5 gram each of the contraband were drawn and marked as A and B. The balance heroin and samples were seized and sealed. The case property was deposited in the Malkhana. It was sent for analysis to FSL. It was tested positive for heroin.

4. The appellant in his statement recorded under Section 313 Cr.P.C. pleaded innocence. In defense two witnesses were produced. DW-1 Jasbir Hussain who was the brother of the appellant and DW-2 Avdhesh Pratp Singh who was running a food stall at Lahori Gate both of them deposed to the effect that the accused was picked up from outside the Delight Cinema when he had gone to watch a cinema. On the basis of the aforenoted evidence, while rejecting the defense of the appellant, he was convicted and sentenced as aforenoted.

5. On behalf of the appellant arguments have been addressed in detail. It is pointed out that mandate of Section 42 of the NDPS Act has not been complied with. Admittedly there was a secret information but the said secret information was not reduced into writing. Second submission being that there is no there is no explanation as to why no public witnesses had been asked to join the raid and in the absence of which doubt is created on the veracity of the parrot like recitation of the police witnesses. Attention has been drawn to the testimony of PW-5 and PW-10. Submission being that the log book of the vehicle also did not mention that the members of the raiding party had gone to the spot for the apprehension of the appellant and this has clearly come in the version of the aforenoted two witnesses; this also throws doubt on the veracity of the version of the prosecution. The defense of the appellant all along was that he has been falsely picked up outside the Delight Cinema. There was no reason as to why this defense of the appellant was rejected. On all counts the appellant is entitled to benefit of doubt and consequent acquittal.

6. Arguments have been refuted. Record has been perused.

7. The first argument of the learned counsel for the appellant qua the mandate of Section 42 of the NDPS Act has been appreciated. Admittedly, this was a case where pursuant to the secret information the raiding party was constituted. The secret information has been reduced into writing by SI Bhagwan Singh (PW-9). This DD entry was proved as Ex.PW-1/A. This was the secret information. PW-1