Crl. Appeal No. 259/2012

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$~R-40D

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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CRL.A. 259/2012

SADDAM ALAM

..... Appellant

Through

Mr. Ashok Kumar Tanwar and

Mr. Vikas Jain, Advocates.

versus

STATE

..... Respondent

Through

Ms.Meenakshi

Dahiya,

APP

along with ASI Rajveer Singh.

CORAM:

HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1

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

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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

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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

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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