The main legal point established in the judgment is the interpretation and applicability of statutory provisions under the NDPS Act, including Section 42, Section 50, and Section 57, to the facts of the case.

Mukta Gupta, J.

Crl. M.A. No. 2787/2010 (additional grounds)

Application is dismissed as not pressed.

Crl. A. 77/2010 and Crl. M.B. Nos. 88/2010, 1585/2010 and 1960/2011

1. The present appeal is directed against the judgment dated 16th November, 2009 passed by the learned Addl. Sessions Judge convicting the Appellant for offence punishable under Section 21 of Narcotic Drugs and Psychotropic Substances Act (in short the NDPS Act). Vide order dated 23rd November, 2009 the Appellant was sentenced to undergo Rigorous Imprisonment for ten years and a fine of Rs. One lakh and in default of payment of fine to further undergo Simple Imprisonment for one year.

2. Learned counsel for the Petitioner contends that the impugned judgment is based upon conjectures and surmises and bad in law. The learned Trial Court has ignored the factual matrix of the case while passing the impugned judgment. The mandatory provisions of NDPS Act have not been complied with in the present case. There is a total non-compliance of Section 42 of the Act as according to DD No. 16 the information with regard to delivery of contraband was received at 2:00 pm whereas the delivery was to be made at 6 pm and the recovery is alleged to have been made around 7 p.m., yet the information was not taken down in writing nor the copy of the same was sent to the superior officials. Furthermore, Ex.PW5/A a report under Section 57 of the Act was sent on the next date. Reliance is placed on Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, (2002) 2 SCC 513 to contend that non-recording of information has in fact deprived the Appellant as well as the Court of material to ascertain the true facts. It is further stated that a report under Section 57 cannot fulfill the requirement of Section 42(2) NDPS Act. Learned counsel has contended that in the instant case the contraband of about 4.025 kg. of smack is seized on 22nd December, 2006 and the sample for testing to the FSL has been sent on 24th January, 2007. Thus there is an unexplained delay of one month two days in sending the samples for examination to FSL. Reliance in this regard is placed on Rishidev @ Omkar Singh vs. State of Delhi Admn., MANU/DE/0783/2008. Relying upon Parveen Singh @ Kalia vs. State of NCT of Delhi, 2011 (121) DRJ 166 it is contended that in the instant case, the notice under Section 50 NDPS case is materially defected in as much as it merely gives an option to the Appellants to get themselves searched before a Magistrate or a Gazetted Officer. It does not, as required by law, inform the Appellants of their legal right to be searched in presence of a Magistrate or a Gazetted Officer. Learned Counsel states that in the instant case the learned Trial Court has completely ignored the mandatory procedural safeguards/provisions as contemplated under the NDPS Act. Thus, the impugned judgment is liable to be set aside.

3. Per contra learned APP for the State contends that there is no illegality in the impugned judgment and all the provisions of the NDPS Act have been adequately complied with. Learned APP states that the recovery of the contraband is from bags which the Appellants were carrying and thus the search was not from their person. Compliance of Section 50 and 42 in such a case where the recovery of contraband is from a bag or a briefcase or polythene which is carried by the accused persons is not mandatory. Reliance is placed on Karnail Singh vs. State of Haryana, (2009) 8 SCC 539. The provisions contemplated under Section 57 of the Act are directory in nature and not mandatory therefore non-compliance of this Section will not vitiate the trial. The contention of learned counsel for the Appellants that there was a delay in sending the sample for examination holds no ground as the delay has been sufficiently explained in the present case. Reliance in this regard is placed upon Hardip Singh vs. State of Punjab (2008) 8 SCC 55, State of Punjab vs. Lakhwinder Singh and Anr. (2010) 4 SCC 402. Thus, the p