IMPORTANT POINTS
(1) Recovery of Heroin – Once recovery is held to be vitiated, accused has to be acquitted.
(2) Mere wrong mention of Section does not vitiate trial if substance of offence and facts are clearly discernible from charge-sheet and evidence on record.

JUDGMENT

Shahzad Azeem, J.—This acquittal appeal arises from the judgment dated 29 February 2012, passed by learned Special Judge (Principal Sessions Judge), Jammu [the trial Court] in file No. 56/Special Challan, titled “State v. Mohd Irfan”, whereby the trial Court has acquitted the respondent-accused of the offences punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

Prosecution Case: -

2. The prosecution case, in brief, is that on 08 March 2010 at about 5:00 P.M., PW-8 Doulat Khan, Sub Inspector and In-charge Police Post, Greater Kailash, along with posse of cops, had laid a naka at City Farm, Greater Kailash, on the National Highway. While the accused was proceeding from the Kunjwani side, he was intercepted. On his personal search, a yellow plastic envelope containing 680 grams of heroin was recovered from his arm-pit. The contraband was seized and the accused was arrested for commission of offence punishable under Section 8/21 NDPS Act. FIR was registered and investigation was set in motion, which culminated in the presentation of the challan before the competent Court.

3. In order to bring home the charge against the accused, the prosecution examined 12 out of 13 listed witnesses, including PW- 6 Raj Singh and PW-7 Jagdish Singh, the independent witnesses.

Findings of the Trial Court: -

4. The trial Court recorded the judgment of acquittal, primarily on the ground that the accused was not given a proper option to be searched before a Gazetted Officer or a Magistrate, as mandated under Section 50 of the NDPS Act. The trial Court further noted that no written information under Section 42 (1) of the NDPS Act was recorded and no copy thereof was sent to the immediate superior officer. In addition to the non-compliance of these mandatory provisions, the trial Court also took note of major contradictions and discrepancies in the prosecution evidence with regard to the colour of the envelope containing the alleged contraband, the place of recovery, the weighing of the contraband, the identity of the person who conducted the search, the colour of the jacket worn by the accused, the procedure of sealing and sampling and the failure to join independent civilian witnesses.

5. The trial Court placed heavily reliance on the settled principle that in NDPS cases, strict compliance with procedural safeguards is mandatory and that any major contradiction touching the core of the prosecution story entitles the accused to acquittal.

Grounds of Challenge and Submissions: -

6. The appellant-State has assailed the impugned judgment primarily on the ground that the trial Court failed to appreciate the oral and documentary evidence adduced by the prosecution. It is contended that the impugned judgment has been passed in a mechanical manner without proper appreciation of the material on record. According to the appellant, the trial Court adopted a hypertechnical approach, whereas the direct and circumstantial evidence led by the prosecution was sufficient to prove the guilt of the accused. The judgment under challenge is, therefore, liable to be set aside.

7. Ex adverso, learned counsel for the respondent has supported the reasoning adopted by the trial Court while acquitting the accused, which shall be dealt with at the appropriate stage.

Analysis: -

8. Before addressing the core issue involved in the appeal, we deem it appropriate to set the record straight. The trial Court framed the charge against the accused by specifically stating that on 08 March 2010, during the search of the accused, 680 gms heroin was recovered. However, instead of alleging the complicity of the accused in the commission of offence under Section 21 of the NDPS Act, the trial Court erroneously mentioned Section 18 of the NDPS Act.

9. It is a settled proposition of law that mere wrong mention of Section does not vitiate the trial if the substance of the offence and the facts are clearly discernible from the charge-sheet a