The main legal point established in the judgment is that Section 50 of the NDPS Act is not applicable in cases of chance recovery and the non-joining of public witnesses does not affect the credibility of the prosecution witnesses if their evidence is found to be cogent, convincing, creditworthy, and reliable.

INDERMEET KAUR, J.

1. This appeal is directed against the impugned judgment and order of sentence dated 23.4.2012 wherein the appellants Prakash Singh and Moti Khan have been convicted under Section 20(b)(ii) (C) read with Section 29 of the NDPS Act; each of them have been sentenced to undergo RI for a period of 10 years and to pay a fine of Rs.2 lac in default of payment of fine to undergo SI for 12 months.

2. The version of the prosecution is that at about 8.45 P.M., a black colour Pulsar motorcycle driven by accused Prakash Singh with Moti Khan as the pillion rider, reached in front of the under construction community hall near Netaji Nagar. Inspector Bal Kishan along with SI Balihar Singh, ASI P.D. Meena (PW-8), H.C.Abdul Hakim (PW-9), H.C. Jasraj (PW-5), H.C.Pramod Kumar (PW-4), Constable A.Rehman (PW-7), Constable Joginder who were on patrolling duty being member of AATS, District South became suspicious as they noticed that there were three army bags kept on the motorcycle. The motorcyclist was asked to stop. Each of the two appellants had one bag with them and the third bag was lying on the motorcycle. PW-8 and the other members of the raiding party introduced themselves to the appellants. They tried to slip away but they were apprehended Accused Prakash Singh was apprehended by PW-8 and accused Moti Khan was apprehended by PW-4. On checking the bags of the appellants, it was found that the bags contained contraband which was in the shape of grass leaves like objects which was later revealed to be ganja. The packets were weighed separately. Each of the three bags contained two packets each. 50 gram samples from each packet were obtained. The total numbers of samples which were drawn from the contraband were 12 and each of them were described separately as A-1, A-2 to G-1 and G-2. The samples as also the remaining contraband was seized and sealed. The disclosure statements of the accused were recorded. They were formally arrested.

3. Further investigation of this case was marked to PW-3. He had also reached the spot. The contraband and the samples were deposited in the Malkhana by PW-6 and entries in the relevant Registrar No.19 were proved. The FSL had tested the samples positive for ganja.

4. On the basis of the aforenoted evidence collected by the prosecution, the appellants were chargesheeted and sentenced as aforenoted.

5. On behalf of the appellants, arguments have been heard in detail. The ground of appeal argued by the learned counsel for the appellant is that the mandate of Section 55 of the NDPS Act has not been complied with; when was the case property deposited? by whom and how the samples were taken to the FSL has not been explained; the link evidence is missing. It is pointed out that notice under Section 50 of the NDPS Act was also not served upon the accused which is a mandatory requirement. The next submission made by learned counsel for the appellant is that there are glaring contradictions in the versions of the prosecution witnesses; they are all police officials; there is no explanation as to why no public witness was joined when admittedly it was a public place where the offence had taken place. On all the aforenoted grounds, the appellants are entitled to benefit of doubt and a consequent acquittal.

6. These arguments have been refuted by learned APP for the State. She has drawn attention of this Court to the testimony of PW-6 who had on oath deposed that he had deposited the case property including FSL form in the Malkhana. Further submission is that since this was a case of chance recovery, notice under Section 50 of the NDPS is not a mandatory requirement. The last submission made by the learned counsel for the State is that the public witnesses were asked to join the proceedings but since they had refused to join and there being no inconsistency in the testimony of the members of the raiding party their versions cannot be disbelieved only on the ground that public witnesses have not