IMPORTANT POINTS
Unless the case property is produced before the Magistrate the accused cannot be convicted under NDPS Act.
High Court will not interfere with acquittal unless there are substantial and compelling reasons.

JUDGMENT

R. BANUMATHI, J.

This appeal arises out of the judgment dated 30.06.2010 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No.199-DBA of 2002 in and by which the High Court reversed the judgment of acquittal of the appellant/accused and convicted him under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced him to undergo ten years imprisonment.

2. Briefly stated case of the prosecution is that on 30.04.1998, Joginder Singh, SI, Police Station Sadar Ludhiana (PW-2) along with other police officials was checking the vehicles on the bridge of Gill Canal towards the side of village Gill. Meanwhile, at about 7.00-7.30 pm, appellant Mohinder Singh came on his scooter No.PB-10B-2413. A signal was given to stop the scooter and the appellant/accused stopped his scooter. It was suspected that some contraband substance was being carried in the bag. Appellant/accused was informed of his right of search before a Gazetted Officer or a Magistrate. Joginder Singh (PW-2) called Gurjit Singh, DSP (PW-4) and the bag carried by the appellant/accused was searched in his presence and the substance bag was found to be “opium”. On weighment, it was found to be 7 kilos and 40 gms. Two samples from the recovered “opium”, each weighing 20 gms were taken and sealed separately having monogram ‘JS’ and ‘GS’ and taken into possession vide recovery memo Ext.-PE. Case property along with two samples was deposited with Baldev Singh MHC (PW-5). Next day i.e. on 01.05.1998, the case property as well as the sample parcels were produced before the Area Magistrate who is said to have initialled the case property and the sample parcels. The sample parcels were sent to Forensic Science Laboratory (FSL) and subjected to chemical analysis and the contents were found to be “opium” in FSL report vide Ext.-P1. After completion of the investigation, charge sheet was filed against appellant under Section 18 of the NDPS Act.

3. To prove the guilt of the accused, the prosecution has examined Constable Hardev Singh (PW-1), SI Joginder Singh (PW-2), ASI Harbhajan Singh (PW-3), DSP Gurjit Singh (PW-4) and Baldev Singh, MHC (PW-5). The appellant was examined under Section 313 Cr.P.C. to explain the incriminating evidence circumstance appearing in the prosecution evidence and he denied all of them.

4. The trial court acquitted the appellant inter alia on the ground that there was non-compliance of Section 50 of the NDPS Act. The trial court further held that no order of the Magistrate was proved to show that the case property was produced before the court, was brought in evidence to show that the seal of the sample sent to FSL tallied with the seal of the contraband, and it cannot thus be said that the evidence regarding such production of case property before the Magistrate was trustworthy. Being aggrieved by the acquittal, the State has preferred appeal before the High Court.

5. Placing reliance upon State of Punjab v. Baldev Singh (1998) 2 SCC 724, the High Court held that recovery of contraband from a bag/attache which the accused was carrying in his hands, would not amount to search of person and as such Section 50 of the NDPS Act will not apply. Based on the evidence of SI Joginder Singh (PW-2) and Harbhajan Singh (PW-3), the High Court held that the case property parcels of the samples and the samples having the seals of ‘JS’ and ‘GS’ were duly produced before the Magistrate and on those findings, the High Court reversed the order of acquittal and convicted the appellant under Section 18 of the NDPS Act and sentenced him to undergo ten years imprisonment. Being aggrieved, the appellant/accused has preferred this appeal.

6. Mr. Harkesh Singh, learned counsel for the appellant inter-alia submitted that since the contraband alleged to have been seized from the accused was not produced before the trial court, conviction of the appellant cannot be sustained. Learned counsel for the appellant plac