In chance recovery situations, compliance with section 50 of the NDPS Act may not be imperative, and the burden of proof lies on the accused to demonstrate lack of knowledge or intention regarding the contraband.

1. Challenge in this appeal is to the judgment dated 4th September, 2012 and order on sentence dated 12th September, 2012 passed by learned Special Judge, NDPS, South and South East in Sessions Case No. 05A/10 arising out of FIR 399/2009 u/s 15/25/29 NDPS Act, Police Station Badarpur vide which the appellant was convicted for offence punishable u/s 15(c), 25 and 29 NDPS Act and was sentenced to undergo rigorous imprisonment for a period of 10 years each and fine of Rs.1,00,000/- each for all the offences, in default to undergo simple imprisonment for a period of two months each. All the sentences were to run concurrently. Benefit of Section 482 Cr.P.C. was given to the convict.

2. Prosecution case, in brief, is that on 21st December, 2009, Head Constable Rajender Singh, Head Constable Ram Avtar and Constable Dharampal of Police Station Badarpur were on duty on a checking picket at the Badarpur Border and they were checking the vehicles coming to Delhi from the side of Haryana. At about 7:20 pm a Mahindra Logan vehicle bearing registration No. PB-10CF-0733 came from the side of Haryana and was stopped for checking. As soon as vehicle was stopped, the driver of the vehicle as well as the person sitting on the front seat by the side of the driver tried to run away. However, the driver was apprehended by the police official and his identity was revealed as Jagjeet Singh @ Raju, resident of village Jassiya, District Ludhiana, Punjab. The other person sitting in the vehicle managed to escape. On checking the vehicle, it was found that four plastic bags were kept in the dickey of the car and the smell of chura post (poppy straw) was emanating from the bags. As such, information was conveyed to police station on the basis of which DD 37A was recorded which was assigned to SI Mahender Singh Dahiya, who reached the spot along with Head Constable Harender. Head Constable Rajender Singh produced Jagjeet Singh @ Raju as well as the above vehicle before Investigating Officer SI Mahender Singh Dahiya. Notice u/s 50 of NDPS Act was served upon the accused apprising him that search of his person and the above car was to be conducted and, in case he wanted, the same could be conducted in the presence of a Magistrate or a Gazetted Officer. However, the accused, vide his written reply, refused to call the aforesaid officers. The police officials also offered their search to him but he declined. Thereafter, the four plastic bags found in the dickey of the car were checked which was found to contain chura post. Then further proceedings were conducted. After completing investigation, charge sheet was submitted against the accused.

3. In order to substantiate its case, prosecution examined 12 witnesses. In his statement recorded u/s 313 Cr.P.C., the accused denied the case of prosecution pursuant to all the incriminating evidence put to him. He claimed himself to be innocent and alleged false implication in this case at the instance of PW5-Harbaksh Singh. He further stated that he was an employee of Harbaksh Singh who called him at Police Station Badarpur on 21st-22nd December, 2009 as his car was seized by the police officials of Police Station Badarpur. When he reached the police station, Harbaksh Singh gave him instructions to get the car released from the Court and to bring the same to Ludhiana. Thereafter, he was made to sign some documents by the police officials on the pretext of release of the vehicle and then he was falsely implicated in this case. After meticulously examining the evidence adduced by the prosecution and the defence taken by the accused, vide impugned judgment and order on sentence, the appellant was convicted and sentenced as mentioned above. Feeling dissatisfied, the present appeal has been preferred.

4. The basic challenge to the impugned judgment by the learned counsel for the appellant is twofold:-

(i) Giving of notice u/s 50 of NDPS Act was imperative as it was not a case of chance recovery, however, in the inst