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This order will dispose of CRA No.S-1045-SB of 2010 filed by Mallu Ram and CRA No.S-1936-SB of 2011 filed by Subhash @ Balram as these arise out of the same judgment and order dated 1.10.2009 passed by the learned Special Judge, Ferozepur whereby the respective appellants in the two appeals have been convicted for the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS' - for short) and sentenced to undergo imprisonment for 10 years, besides, pay a CRA No.S-1936-SB of 2011 fine of Rs.1 lac each and in default of payment of fine, to undergo rigorous imprisonment for two years. The period of detention of the convicts has been ordered to be set off against the sentence awarded to them. The car bearing No.DL-2-CH0012 and the case property has been ordered to be confiscated to the State under rules after the expiry of the period allowed for appeal/revision.

SI Major Singh (PW-1) was posted as In charge Narcotic Cell, Ferozepur on 9.5.2007. On the said date, he along with HC Tarlochan Singh (PW-2), HC Arpinder Singh and other police officials were in government vehicle No.PB 05K 1089 driven by Constable Jasbir Singh. A check-post ('naka') had been set up in the area of Basti Ahmewal, Police Station Sadar Ferozepur for checking suspected persons carrying contraband material. A white colour Maruti car came from the side of Ferozepur at about 5.00 p.m. The said car was signalled to stop. The driver of the car, however, tried to get away but he was chased and apprehended with the help of the police officials. On questioning, he disclosed his name as Mallu Ram (appellant in CRA No.S-1045-SB of 2010). He was driving the car with registration No. DL 1- CH 0012. Subash @ Balram (appellant in CRA No. S-1936-SB of 2011), was sitting by the side of Mallu Ram (appellant in CRA No.S-1045-SB of 2010). SI CRA No.S-1936-SB of 2011 Major Singh asked both the occupants of the car whether they wanted to get the search of the car to be conducted in his presence or in the presence of some Gazetted Officer or Magistrate. The occupants of the car opted for the search to be conducted in the presence of some Gazetted Officer. The non-consent memo (Ex.P1) of both the car occupants was prepared which was signed by them. It was attested by HC Arpinder Singh, HC Tarlochan Singh (PW-2). Thereafter, DSP Rajinder Singh (PW-4) from the wireless fitted in the vehicle was asked to reach at the spot. After sometime at about 5.40 p.m., he came at the spot in his official vehicle along with the gunman. He was apprised of all the facts and circumstances. DSP Rajinder Singh (PW-4) disclosed his identity to both the occupants of the car and stated that it was suspected that some intoxicant material was being carried in the car and a search of the car was to be conducted. He asked both the occupants whether they wanted to get the search of the car conducted from him or in the presence of some other Gazetted Officer or Magistrate. Both the appellants reposed confidence in DSP Rajinder Singh (PW-4). Before conducting the search of the car, consent memo (Ex.P2) of both the occupants of the car was prepared which was signed by them and attested by aforesaid witnesses and the DSP. On the directions of DSP Rajinder Singh (PW-4), SI Major Singh (PW-1) conducted a search of the car. In consequence of the search, opium wrapped in a glazed paper was recovered from in between the front seats of the car which was contained in a gunny bag. The contraband was wrapped in a glazed paper envelope. Arrangement for weighing the contraband was made. Two samples of ten-ten grams of opium each were separated from the bulk CRA No.S-1936-SB of 2011 opium and their separate parcels were prepared by putting them in glazed paper. The parcels were numbered as one and two respectively and the remaining opium on weighment was found to be 6 kgs 980 grams. Its separate parcel was prepared. Both the sample parcels and bulk parcel were sealed by SI Major Singh (PW-

4). The car was also taken in possession vide memo Ex.P4.

Personal search of Mallu Ram (appellant in CRA No.S-1045-SB of 2010) was conducted and a sum of Rs.2500/- was recovered. From the search of Subhash @ Balram (appellant in CRA No.S-1936-SB of 2011), a sum of Rs.2000/- was recovered. These were taken in possession vide recovery memos Ex.P5 and Ex.P6 respectively, which were signed by both the appellants and attested by HC Tarlochan Singh (PW-2), Arpinder Singh and DSP Rajinder Singh. Memos of grounds of arrest Ex.P7 and Ex.P8 respectively of both the appellants were prepared which were signed by each of them and attested by the said witnesses but not by the DSP Rajinder Singh. A writing (Ex.P9) was sent to the Police Station on the basis of which FIR (Ex.P10) was recorded by ASI Atma Singh. A rough site plan (Ex.P11) with correct marginal notes was prepared by SI Major Singh (PW-1). The statements of witnesses were recorded. Registration copy (Ex.P12) of the car was taken in CRA No.S-1936-SB of 2011 possession vide memo (Ex.P13) which was attested by the aforesaid two Head Constables. On return to the Police Station Sadar Ferozepur, HC Major Singh (PW-1) produced the accused, the car and the case property before Inspector Sarabjit Singh (PW-3) who also verified the facts of the case and he also affixed his seal 'SS' on the entire case property and attested the sample seal. He took the entire case property in his possession vide memo Ex.P14, which was attested by him. Next day, he (PW-1) sent intimation to the relations of the accused vide memo Ex.P15. Report (Ex.P16) of the Chemical Examiner was received. The police report (challan) was prepared in terms of Section 173 of the Code of Criminal Procedure ('CrPC' - for short) by Inspector Sarabjit Singh (PW-3).

I have given my thoughtful consideration to the matter. The prosecution case as has been noticed is that a check-post had been set up by the police party headed by SI Major Singh (PW-1) who was In charge of Narcotic Cell, Ferozepur on 9.5.2007 in the area of Basti Ahmewal. The police party was conducting checking of vehicles for recovery of any contraband. A white colour Maruti car came from the side of Ferozepur at about 5.00 p.m. The said car was signalled to stop. The driver of the car, however, tried to run away but he was chased and apprehended. Mallu Ram (appellant in CRA No.S-1045-SB of 2010) who was driving the car bearing registration No. DL 1 CH-0012, on questioning, disclosed his name as such. Subash @ Balram (appellant in CRA No. S-1936- SB of 2011) was sitting by the side of Mallu Ram (appellant in CRA No.S-1045-SB of 2010). SI Major Singh (PW-1) asked both the occupants of the car whether they wanted to get the search of the car to be conducted in his presence or in the presence of some Gazetted Officer or Magistrate. The occupants of the car opted for search of the car to be conducted in the presence of some Gazetted Officer. Therefore, DSP Rajinder Singh (PW-4) was called at the spot and search was conducted in his presence which led to the recovery of 7 kgs opium from the car. Two samples of ten grams of opium each were separated from the bulk opium and their parcels were prepared the remaining opium on weighment was found to be 6 kgs 980 grams. Its separate parcel was prepared. Both the sample parcels and bulk parcel were sealed by SI Major Singh (PW- CRA No.S-1936-SB of 2011