REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1101 OF 2004

State of Delhi

… Appellant

Versus

Ram Avtar @ Rama

… Respondent

J U D G M E N T

Swatanter Kumar J.

1

Ingenuity of counsel sometimes results in formulation

propositions, which appear at the first flush to be legally

sound and relatable to recognized cannons of criminal

jurisprudence. When examined in greater depth, their

rationale is nothing but illusory; and the argument is without

substance. One such argument has been advanced in the

present case by the learned counsel appearing for the

appellant who contends that ‘even where the provisions of

Section 50 of the Narcotic Drugs and Psychotropic Substances

Act, 1985 (hereinafter referred to as ‘the Act’) have not been

complied with the recovery can otherwise be proved without

2

solely relying upon the personal search of the accused’.

According to the learned counsel, the courts are required to

take into consideration evidence of recovery of illicit material

independently of the factum of personal search of the accused

as stated by other witnesses as such evidence would be

admissible and can form the basis for conviction of an accused

in accordance with law.

Before we notice the judgments which have been referred

to on behalf of the State, it will be necessary for us to refer to

the facts giving rise to the present appeal. On 18^th January,

1998 at about 8.15 a.m., a secret informer met Assistant Sub

3

Inspector (ASI) - Dasrath Singh (who was examined as PW8)

and informed him that a person by the name of Ram Avtar @

Rama resident of House No. 71/144, Prem Nagar, Choti Subzi

Mandi, Janakpuri would be going to his house on a two

wheeler scooter No. DL 4SL 2996 and if the said person was

searched and raid was conducted, smack could be recovered

from him. This information was passed on by ASI-Dasrath

Singh, to the Station House Officer (SHO) M.C. Sharma (who

was examined as PW4), on telephone, who in turn directed

R.P. Mehta, Assistant Commissioner of Police (Narcotics

Bureau) ACP(NB) to conduct the raid immediately. The secret

information was recorded in the DD at Sl. No.3. In furtherance

4

to this at around 8.30 A.M., ASI Dasrath Singh along with Sub

Inspector (SI) Sahab Singh, Head Constable Narsingh,

Constable Manoj Kumar, Lady Constable Nirmla and the

informer left for the spot in a Government vehicle. The vehicle

was parked in a hideout at some distance. At around 9.30

a.m. Ram Avtar was apprehended based on pointing out by

the informer while he was coming on a two wheeler scooter

from the side of the main road, Tilak Nagar near his house. It

is the case of the prosecution that a police officer in the

raiding party had requested some persons, who were passing

by, to join the raid but they declined to do so on some ground

or the other. The police officer then served a notice Ex. PW6/A

5

in writing, under Section 50 of the Act upon the appellant but

he declined to be searched either in presence of a Gazetted

Officer or a Magistrate. On search, three polythene packets

were recovered from left side pocket of his shirt. On opening

the packets, it was found to contain powder of light brown

colour, suspected to be smack. This recovered powder was

mixed together. The total weight of the recovered powder was

16 grams, out of which 5 grams were separated as sample.

Both the sample and the remaining powder were converted

into two parcels and sealed with the seal of DS which were the

initials of PW8. CFSL Form was filled and seal of DS also

affixed thereon. Parcels were seized vide memo Ex. PW-2/8.

6

PW8 sent the parcels, CFSL Form and copy of rukka, Ex.PW-

5/8 through Constable Manoj Kumar to Station House Officer

(PW4) for recording an FIR under Section 21 of the Act. The

samples, rukka etc. are n