IMPORTANT POINT
Provisions of Sections 42(2), 50 and 57 of N.D.P.S. Act are mandatory and non-compliance vitiates conviction.

JUDGMENT

J.K. Mehra, J. - The case of prosecution is that the appellant was apprehended with the contraband. i.e. 2 kgs. of heroin near Delhi Public Library and that he was given the option of being searched in the presence of Gazetted Officer Magistrate, which that he declined the notice under Section 50, being Exhibit PW 1/A was read over to me containing the endorsement. "MAIN APNI TALASHI KISI G.O. YA MAGISTRATE KE SAMNE NAHIN DENA CHAHTA". Thus it if? argued by the prosecution that Section 50 stands fully complied with. Mr. Mathur, however, has disputed this and has stated that not only Section 50 notice was prepared later on in the police station but the entire seizure etc. was effected inside the police station and not on the spot where the appellant was apprehended. Mr. Mathur states that the story of the defence is that the entire quantity of the contraband was planted and that mandatory conditions of Section 50 have not been complied with. Mr. Mathur has drawn my attention to the original Exhibit PW 1/ A and has pointed out that this document was written subsequently for the simple reason that it bears on top the FIR number, which is in the same ink and is in running and he points out that in the seizure memo, which -was admittedly prepared at the police station, the number of the FIR was left blank and was filled up later, as is evident from the dash under that number, which indicated that line with is drawn to leave space blank for filling up the FIR number later. No such thing happened in the case of Section 50 notice. Counsel for the State has argued that this notice was proved by the police witness and he has not been cross examined on this aspect by defence. As against this, there is the testimony of the only independent witness, who has categorically stated that everything was carried out inside the police station and not on the spot and that the appellant was taken to the police station with the alleged Thaila on his shoulder to the office of ACP. It is further pointed out as to how could the number of the FIR be given on top in the same ink and the handwriting when the FIR has not so far been registered even. The appellant has relied upon the ratio of the case of Pawan Kumar v. Delhi Administration1.

2. I have been taken through the discrepancies in the story of the prosecution. According to one witness. CFSL form was deposited by Inspector Gurcharan Dass, SHO whereas column No. (B) of Register 19. Exhibit PW 6/13 shows the name of the depositor as SI Ramesh Kumar and Inspector. Gurcharan Dass. Another thing, which has to be noticed is that in Malkhana Register. Exhibit PW 6/A, signatures of the person receiving the case property for carrying it to CFSL are also not shown there. Yet another discrepancy which cannot be considered insignificant is that the road receipt, Exhibit PW 3/DA makes no mention of CFSL form. Therefore, it cannot be said whether CFSL form was sent alongwith the case property. For this reason also, I tend to agree with the learned counsel for the petitioner that the prosecution cannot be taken to have proved that CFSL form was actually deposited with the Moharrer Malkhana in the first place or that it was actually sent thereafter to CFSL. In the absence of documentary evidence, I am not inclined to place any reliance on the oral testimony of the police witness without cogent explanation for absence of entries in the documentary evidence of this nature. The existence of documents i.e. the registers of Malkhana is already proved. Oral testimony which is contrary to the documentary evidence. i.e. the register Malkhana and the road certificate cannot be preferred unless evidence is led proving reasons for omission in the documents. No grounds for alleged omissions have been pointed out from the evidence. For that reason, I have to presume that what is not mentioned in the register of Malkhana was not there. A reference be made to the case of Phool Kumar v. State2

3. It is also the case of th