The mandatory nature of Section 50 of the NDPS Act and the duty of the empowered officer to inform the suspect of their right to be searched before a Gazetted Officer or Magistrate.

JUDGMENT

M.S. Sonak, J. - Heard Mr. Poulekar for the Appellant and Mr. Mahesh Amonkar, learned Public Prosecutor for the State.

2. This Appeal is directed against the Judgment and order dated 19/25th November, 2016, made by the learned Sessions Judge, in NDPS Case No.40/2015, convicting the Appellant for offences punishable under Section 20 (b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), for illegal possession of commercial quantity of charas and sentencing him to undergo imprisonment for a period of 10 years and to pay fine of Rs.1,00,000/- and in default, to undergo simple imprisonment for a period of six months.

3. The Prosecution case is that on 2nd July, 2015, between 19.10 hours to 21.40 hours, at Agarwado Junction, Pernem, Goa, when the Police team, headed by the Police Sub-Inspector (PSI) Kishor (PW.6) was patrolling the area, they found the appellant (accused) moving in a suspicious manner. On seeing the police, the accused attempted to run away and therefore, chased and apprehended on the suspicion that he might be carrying narcotics. Thereafter, the Panchas were called. A shoulder bag which the accused was carrying, was first searched. In it, the team found two pieces of sticky substance, wrapped in transparent polythene. This was packed and sealed by following the prescribed procedure. This substance was ultimately analysed and found to be 'charas', weighing 1.216 kgs., valued at approximately Rs. 1,50,000/-.

4. The charge was framed against the accused and consequent upon his pleading 'not guilty', the trial ensued. The Prosecution examined 6 witnesses. The accused was questioned under Section 313 Cr.P.C. The accused denied the Prosecution case and examined himself (DW.1) and his brother-in-law (DW.2), as defence witnesses.

5. The learned Sessions Judge, by the impugned Judgment and Order, has convicted and sentenced the accused with the aforesaid terms. Hence, the present appeal.

6. Mr. Poulekar, the learned Counsel for the Appellant submits that in the present case, there was no compliance with the mandate of Section 50 of the NDPS Act inasmuch as, the search was admittedly not undertaken before a Gazetted Officer or Magistrate. He relies on the decision of the Hon'ble Apex Court in Arif Khan alias Agha Khan vs. State of Uttarakhand, (2018) 18 SCC 380 ; and the decisions of this Court in James Sunday Chinonso vs. State and anr., Cri. Appeal No.44/2017 decided on 1/10/2019 and Krishna s/o Kavi Raj Malla vs. State to submit that that such noncompliance is fatal to the prosecution case.

7. Mr. Poulekar submits that in this case, there has been noncompliance with the provisions of Section 52-A and Section 55 of the NDPS Act, which is again fatal to the prosecution case. He points out that there is overwriting, backed by no initials of the overwriter. He points out that the seal movement registers are not proved in accordance with law and, in any case, they do not support the prosecution version. He submits that all these factors, coupled with the defence raised by the accused, establish that there has been tampering with the samples. He relies on the decision of the Hon'ble Apex Court in Union of India vs. Mohanlal and another,2016 1 DrugsCase(N) 1 decided on 28/1/2016 in support of his contentions.

8. Mr. Poulekar submits that the testimony of PW.1 - Scientific Expert inspires no confidence and even casts doubt on whether the test/analysis was at all carried out by this so called expert. He points out that there is discrepancy regards weight of the substance and about the date on which the tests were allegedly carried out. He submits that no worksheets are produced and the evidence on record does not establish that the two packets were independently analysed and found to contain charas. He submits that based upon the testimony of PW.1, no conviction could have been recorded against the accused. In any case, he submits that the evidence on record is not sufficient to establish that