MEHTAB S.GILL,J - (1.) THIS is an appeal against the judgment dated 9.3.2005 of the Special Court, Panipat, whereby the learned Judge convicted Mohammad Sadiq alias Mohammad Rafiq son of Latif Khan under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as "NDPS Act") and sentenced him to undergo R.I. for twelve years. He was further directed to pay a fine of Rs. 2,00,000/-. In default of payment of fine to further undergo R.I. for two years.
(2.) THE case of the prosecution is that on 29.6.2000 SI Chamela Ram sent ruqa Ex.PC to the Incharge of Police Station City Panipat, wherein he stated, that he along with Constable Chattar Singh, Constable Sewa Ram and Constable Satish Kumar was present in front of the outer gate of the Bus Stand, G.T. Road, Panipat in connection with patrolling. A young boy having a plastic bag of blue colour in his right hand was seen coming from the side of the bus stand. On seeing the police party, he turned around and tried to run away. The police party got suspicious and apprehended him. On enquiry, he gave his name as Mohd. Rafiq son of Latif Khan, resident of Bhawani Mandi (Rajasthan). Notice under Section 50 of the NDPS Act was given to him, as to whether he wanted to be searched by a Magistrate or a Gazetted Officer. Accused stated, that he be searched in the presence of a Magistrate or a Gazetted Officer. Shri Balraj Singh, Naib Tehsildar Panipat, was requested on telephone to come to the spot. After some time, Shri Balraj Singh, Naib Tehsildar came in a Govt. Jeep along with his staff. The search of the plastic bag, which was in the right hand of the accused, was done by Sub Inspector Chamela Ram. Smack wrapped in a wax paper was found. Arrangement of scale was made and the smack with the paper was weighed. It weighed 900 gms. 50 gms of smack was taken out as sample. Rest of the smack was put in a plastic pipi (Tin-box). Seal of "DS" was put on the sample and the plastic pipi. After use, the sample seal was given to Constable Chattar Singh. Accused stated, that the smack was handed over to him by Surender resident of Bhakhoda Mandi, Police Station Bhawanpura (M.P.), which was to be handed over to Prince Sardar, at Jallandhar City. On the basis of this statement, FIR Ex.PC/1 was recorded. The prosecution to prove its case brought into the witness box Constable Jasmer Singh PW1, MHC Naresh Kumar (since retired) PW2, Sub Inspector Karan Singh PW3, Constable Azad Singh PW4, Inspector (Retired) Raghbir Singh PW5, Balraj Singh Naib Tehsildar Panipat PW6 and Sub Inspector Chamela Ram PW7.
(3.) LEARNED counsel for the appellant has argued, that no independent witness was joined, though the recovery was made from the bus stand. There is an unexplained delay in sending the sample to the Forensic Science Laboratory. There was all likelihood, that the case property was tampered with. Both Balraj Singh Naib Tehsildar PW6 and Sub Inspector Chamela Ram PW7 have stated, that the recovery from the appellant was charas. They have stated nothing about smack being recovered from the appellant. There are material discrepancies in the statements of both these witnesses. Section 50 of the NDPS Act, which is mandatory, was not complied with.;