The importance of following proper procedures in handling contraband and respecting the accused's rights under Section 50 of the NDPS Act.

1. This appeal assails judgment, dated 13th May, 2014, whereby the learned Special Judge (NDPS-02) convicted the appellant for the offence punishable under Section 20(C) of the Narcotics, Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”), as well as the consequent order, dated 24th May, 2014, whereby the learned Special Judge sentenced the appellant, for the said offence, to undergo 12 years rigourous imprisonment with fine of Rs. 1 lakh, and default simple imprisonment of 6 months.

2. The case of the prosecution, as upheld by the learned Special Judge, is that the appellant, a Nepali national, was intercepted, on 23rd June, 2012, at about 11:45 AM, and was found to be carrying 10 kg of hashish (charas), which constituted an offence under Section 20 of the NDPS Act. The appellant was arrested and, on his pleading not guilty, was tried for the said offence and, vide the impugned judgment and order, convicted and sentenced therefor.

The Evidence

3. The prosecution examined 11 witnesses, PW-1 to PW-11.

4. The MHC (M), PS Crime Branch, HC Jagnarain, deposing as PW-1, confirmed that three pullandas had been handed over, to him, by PW-6 Inspector C.R. Meena, on 23rd June, 2012, and that the pullandas were sealed with the seals of the Narcotics Bureau. He confirmed the depositing of the said samples in the Malkhana and, later, handing over the pullanda marked ‘A’, along with the FSL Form to PW-5 HC Manoj Kumar, as well as being handed over the result of the FSL (Ex. PW-1/A) by HC Manoj Kumar (PW-5), after deposit of the said samples. PW-1 further confirmed having received the official report on 29th August, 2012, and handed over the same to the I/O.

5. PW-2 HC Yogesh confirmed, in his examination-in-chief, being part of the raiding party organised by PW-10 SI Sunil Jain, which consisted of PW-10, himself and HC Rajesh (PW-3) on 23rd June, 2012. He also confirmed that the raiding party had been constituted consequent to receipt of secret information that one person, named Deepak, who was a Nepali national, would be approaching the Indian Oil petrol pump, near Majnu Ka Tila, for supplying hashish (charas). He confirmed intercepting and overpowering the appellant (whom he recognised in court). He further deposed that notice, under Section 50 of the NDPS Act was served on the appellant, informing him of his legal right to be searched in the presence of a Gazetted Officer or a Magistrate, but that the appellant refused to exercise the said right, which was recorded as Ex. PW-2/B, on the body of the notice (Ex. PW-2/A). He further deposed that passers-by, though requested to join the raiding party, did not oblige. Thereafter, PW-2 deposed, search, of the bag carried by the appellant, was conducted by the I/O, which disclosed that it contained a polythene pouch with solid material in it which, on being tested using the Field Testing Kit carried by the raiding party, was found to be charas, weighing 10kg. He further deposed that, from the said 10 kg charas, two samples of 50g each were separated and kept in separate pullandas, marked ‘A’ and ‘B’. The remaining charas was kept in a bag, which was marked ‘C’. He deposed, further, that the I/O affixed the seal of the Narcotics Bureau on the FSL form and on the said three pullandas, whereafter the seal was handed over to PW-3 HC Rajesh. The property was seized by the I/O, vide seizure memo Ex. PW-2/C.

6. PW-2 further deposed taking the rukka, prepared by the I/O to the Police Station where, on the basis thereof, FIR was registered. He confirmed handover of the samples, by the SHO, to the MHC (M). PW-2 identified, in court, the various exhibits.

7. The testimony of PW-2 was supported by PW-3 HC Rajesh Kumar and the I/O SI Sunil Jain, who testified as PW-10. One significant difference, in the statement of the I/O PW-10 SI Sunil Jain, as compared to the statements of PW-2 and PW-3, is, however, that PW-10 testified that he “conducted cursory search of accuse