The prosecution must prove safe custody of case property and conscious possession of contraband beyond reasonable doubt.

Mukta Gupta, J.-

1. The present appeal is directed against the judgment of the learned Trial Court dated 30th April, 2011 whereby the Respondent was acquitted of the charges under Sections 21 (c) and 23 read with Sections 28 and 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (in short “the NDPS Act”).

2. After hearing the parties, leave to appeal was granted by this Court on 4th January, 2013 and the appeal was set for hearing for today as the Respondent is a resident of USA.

3. Learned counsel for the Appellant submits that the learned Trial Court acquitted the Respondent on three counts, that is, non-compliance of Section 50 of the NDPS Act, possession of alleged contraband being not in a conscious possession and that the case property was not secured properly by the prosecution. As regards non-compliance of Section 50 of the NDPS Act, learned counsel for the Appellant states that since the recovery was from the baggage and not from the personal search of the Respondent, the mandatory compliance of Section 50 of NDPS Act was not required to be done. However, still notice under Section 50 NDPS Act was served on the Respondent when the search was taken. Reliance is placed on Ajmer Singh vs. State of Haryana, 2010 (1) LRC 278 (SC), Khet Singh vs. Union of India, 2002 (1) JCC 588 (SC) and Vimal Kumar Bahl vs. DRI, 2009 (113) DRJ 540. Regarding possession of the contraband not being conscious, learned counsel for the Appellant has taken me through the evidence on record and it is contended that PW11 Jitender Grewal at whose house the Respondent was staying and who had allegedly given the bag to the Respondent was examined before the learned Trial Court who clearly stated that the suitcase was given to the Respondent however, the same only contained his grand daughter’s clothes and sandals as she was to go on 24th May, 2009 to USA and the suit case was not locked. No suggestion has been made to this witness that the contraband belonged to him or that the suitcase was locked. Further the statement of the Appellant was recorded under Sections 108 of the Customs Act and 67 of the NDPS Act which are admissible against him. In the statements the Appellant admitted his mistake and did not state that the suitcase belonged to someone else. As regards the finding that the case property was not properly secured, it is contended that learned defence counsel could take out the property only after opening the stitches on both the sides. Thus the stitches being intact the case property cannot be said to be tampered with. Reliance is placed on State of Haryana vs. Mai Ram, son of Mam Chand, 2008 (3) JCC Narcotics 188 SC to contend that the prosecution version does not become vulnerable for non-examination of nonofficial witnesses. Thus even if the panch witnesses had not supported the prosecution case, in view of the testimony of the official witnesses, the Respondent is required to be convicted for the offences charged.

4. Learned counsel for the Respondent contends that since personal search of the Respondent was taken before the search of the baggage, Section 50 of the NDPS Act was required to be complied with. Reliance is placed on Dilip and another vs. State of Madhya Pradesh, AIR 2007 SC 369 and Kishan Chand vs. State of Haryana, MANU/SC/1120/2012 decided on 13th December, 2012. It is contended that when the punishment is harsh then meticulous compliance of the necessary provisions is required to be carried out and the principle of substantial compliance has no application. Ex. PW3/A the alleged notice under Section 50 of the NDPS Act does not inform the Respondent of his legal right to be searched before a gazetted officer or Magistrate. Further the same is a computerized print out thus showing that the raiding team was aware that the Respondent was allegedly carrying the contraband or at least they had an apprehension regarding the same. Further PW9 the Investigating Officer has categorically stated that the Respon