IMPORTANT POINT
Provisions of sections 42, 50 & 41(2) of NDPS Act are mandatory and their non-compliance vitiates investigation & trial.

JUDGMENT

Dr. Sarojnei Saksena, J. - The appellant was convicted by Shri- S.S. Tiwana, Additional Sessions Judge, Patiala for offence under section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter in short 'the Act') and was Appeal allowed sentenced to undergo RI for ten years with a fine of rupees one lac, in default to further undergo RI for 2-1/2 years.

2. The factual matrix of the case is that on 17th December, 1985, Head Constable Megh Raj of Police Station Samana was going on his routine patrol duty from village Kulahran to village Behmana alongwith police constables Amarjit Singh and Satnam Singh. At about 11.30 AM, they saw the accused coming by the canal minor inspection road on cycle in the area of village kulahran. Seeing the police party the accused appellant tried to retreat. On suspicion he was arrested by Head Constable Megh Raj. They found in his possession a gunny bag containing fiteen kilograms of crushed poppy heads, from out of which 100 grams stuff was taken as sample. Both articles were sealed separately by the Head Constable. Megh Raj Head Constable sent ruqqa Ex. PC to Police Station Saman wherein a case was registered under section 0 of the Opium Act, 1978. During investigation, sample of contraband sealed articles was sent to the Chemical Examiner who after examination opined that it contains powder poppy husk.

3. The accused appellant pleaded not guilty. His plea was that of false implication.

4. During trial the prosecution examined Head Constable Megh Raj and Satnam Singh. Affidavits of MHC Amrik Singh and Head Constable Ram Dhan were filed and were admitted in evidence. The trial court relying on the statements of Satnam Singh and Head Constable Megh Raj found that the prosecution has proved beyond doubt that at the relevant time the accused was in conscious possession of fifteen kilograms of poppy husk, and thus finding him guilty under section 15 of the Act, he was sentenced accordingly.

5. The appellant’s learned counsel vehemently argued that the Act came into force in September, 1985. The accused appellant was hauled up for this offence on 17th December, 1985, but still initially the offence was registered under the Opium Act. The mandate of the procedural safeguards of the Act were not observed. Mandatory provisions of Sections 41, 42, 43, 50, 52 and 55 of the Act were not followed. Their nonobservance has resulted in causing prejudice to the accused. No independent witness was associated at the time of the search and seizure. For this proposition he has relied on State of Punjab v. Kulwant Singh1 and State of Punjab v. Balbir Singh2.

6. Learned counsel appearing for the State could not support the judgment as during investigation the aforesaid provisions of the Act were not followed at all.

7. In these above cited authorities it is held that provisions of sections 42, 50 and 41(2) of the Act are mandatory. In this case it is evident that at the time of search and seizure, provisions of section 50, of the Act were not complied with. On this count alone the trial is vitiated and the accused appellant is entitled to acquittal. Though the patrolling police party was going from one village to another and a dera was situated at a distance of about 1/2 furlong from where weights and weighing scales were procured, but still no independent witness was called from the dera to witness this search and seizure. Hence, I find that whole of the investigation was conducted in utter disregard of the aforesaid provisions of the Act and on this count the accused is entitled to be acquitted.

8. Accordingly, this appeal is allowed, conviction and sentence of the accused under section 15 of the Act are set aside. Bail bonds are discharged.

Appeal allowed.

1.1994(1) RCR 303.

2.1994(1) RCR 736.