Contraband--Found mixed with neutral substances--Content of narcotic drug or psychotropic substance is to be taken into consideration for the purpose of imposition of punishment.

J.S.Khehar, J.

1. The instant appeal has been filed by the accused/appellant Anup Gupta against the judgment rendered by the Special Judge, Gurdaspur, in Sessions Case No. 16 of 2004 decided on 23.12.2005. By the impugned judgment the Special Judge, Gurdaspur, convicted both the accused Ruldu Ram and Anup Gupta under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act"). By a separate order passed on the following date i.e. 24.12.2005, both the convicts Ruldu Ram and Anup Gupta, were sentenced to undergo rigorous imprisonment for 12 years and with a fine of Rs. 1,00,000/- each under Section 21 of the NDPS Act. In default of payment of fine, the defaulting convict was directed to further undergo rigorous imprisonment for one year.

2. The prosecution version of the incident is based on the statement of SI Paramjit Singh PW2 recorded in the area of village Umarpur near bye pass, Jalandhar Road, adjoining the town of Batala on 24.8.2003. In his aforesaid statement SI Paramjit Singh PW2 asserted that he along with other police officials from Police Station Civil Lines, Batala were holding a "nakabandi" at the Amritsar bye pass in connection with general checking, when he received secret information that one Ruldu Ram resident of Ujagar Nagar Batala who was a known dealer of smack was to receive a consignment of smack, from Rajasthan, through one Anup Gupta. According to the secret information, if checking of buses and trucks is made, there was a possibility of apprehending the aforesaid persons along with their consignment. On receipt of the information, SI Paramjit Singh PW2 went to Jalandhar bye pass for the purpose of holding a special "naka". While on their way, the police party spotted two persons coming out of a deserted brick kiln. On seeing the police party the said two persons immediately turned back, thereby, raising a suspicion in the minds of the police party. SI Paramjit Singh PW2 then stopped the two persons, and apprehended them. The aforesaid two persons on inquiry disclosed their identity as Ruldu Ram and Anup Gupta. SI Paramjit Singh PW2 confronted Ruldu Ram and Anup Gupta by asking them whether they were carrying some drugs. On their denial, he asked them (Ruldu Ram and Anup Gupta), whether they desired to get themselves searched by a gazetted officer, or by a magistrate. Both Ruldu Ram and Anup Gupta expressed their desire to get themselves searched by a gazetted officer. Accordingly, SI Paramjit Singh PW2 sent a wireless message to DSP Narinder Kumar Bedi PW2, with a request, that he should reach the spot where Ruldu Ram and Anup Gupta had been apprehended. In the meantime Fakir Singh, Sarpanch, who was passing by, was associated with the police party. After some time, DSP Narinder Kumar Bedi PW1 also reached the spot. Yet again DSP Narinder Kumar Bedi PW1, asked the apprehended persons Ruldu Ram and Anup Gupta, whether they would like to get themselves searched by him or by a magistrate, after informing them that he (DSP Narinder Kumar Bedi PW1) was a gazetted officer, and further that, they had the legal right to get themselves searched before a magistrate. According to the statement of SI Paramjit Singh PW2, both Ruldu Ram and Anup Gupta had consented to be searched by DSP Narinder Kumar Bedi PW1. In this behalf, they also affixed their signatures on the consent memo. On being asked by DSP Narinder Kumar Bedi PW1, SI Paramjit Singh PW2 first of all conducted the personal search of Ruldu Ram and recovered one kilogram of brown sugar concealed in a glazed paper from a yellow colour "parna" which he had tied around his waist. Out of the recovered brown sugar 10 grams was separated as sample. The recovered sample, was then put into a small plastic box ("dhabbi") and the remaining 990 grams was put in another plastic box ("dubba") along with the glazed paper. Both the aforesaid parcels were sealed with the seal of SI Paramjit Singh PW2 bearing t