Failure to comply with Section 50 of the NDPS Act is fatal to the case of the prosecution, which stands vitiated, in its entirety, thereby.

JUDGMENT :

C. Hari Shankar, J.

Vide judgment dated 26th April, 2017, the learned Additional Sessions Judge (hereinafter referred to as "the learned ASJ") has convicted the appellants under Section 20(b)(ii)(C) of the Narcotic, Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act"). As a consequence, vide separate order dated 29th April, 2017, the learned ASJ has sentenced each appellant to 10 years" rigorous imprisonment (RI) and fine of Rs. 1 lakh in each case, with default sentence of 1 years RI.

2. These appeals are directed thereagainst.

The Facts

The Case of the Prosecution

3. At 6:15 p.m. on 5th March, 2013, a secret informer visited the office of the Narcotics Cell, Shakarpur, and informed that two persons, namely Sikodh Mahto and Prabhu Mahto (the appellants herein), who were involved in smuggling of charas (cannabis) from Nepal, would arrive at the bus stand, near the Delhi Police Apartments, Noida Road, with a huge quantity of charas, between 7:30 and 8:00 p.m. The information was passed by Insp. Sanjay Kumar Gade (PW-8) to ACP N&CP Zile Singh, who issued directions for conducting the raid and taking of action on the basis thereof. The information was recorded by SI Rajnikant Sharma (PW-9) at about 6:45 p.m., and produced, under Section 42 of the NDPS Act, before the Inspector, Narcotics Cell, for appropriate action. SI Rajnikant (PW-9), thereafter, organized a raid party comprising Head Constable (HC) Kanwal Singh (PW-3), HC Narender (PW-2), HC Mahesh Kumar and himself, which proceeded to the spot in question, in a vehicle driven by Const. Satpal (PW-5). Passers-by were invited to join the raid team, but they refused. The appellants were seen walking towards the spot at about 7:55 p.m., with Sikodh Mahto (hereinafter referred to as "Sikodh") carrying a red and blue coloured bag and Prabhu Mahto (hereinafter referred to as "Prabhu") carrying a cream coloured bag. The informer identified them, and left. At about 8 p.m., the appellants were intercepted and overpowered. SI Rajnikant (PW-9) introduced himself to them. On being queried, they disclosed their names to be Sikodh Mahto and Prabhu Mahto. The appellants were apprised of the fact that information, regarding their carrying charas, had been received, and that their persons and bags would have to be searched. They were asked whether they desired to be searched in the presence of a Gazetted Officer or a Magistrate, and were also provided copies of notices under Section 50 of the NDPS Act. The appellants refused the offer for having the search conducted in the presence of a Gazetted Officer/Magistrate. Sikodh conveyed his refusal in writing, whereas Prabhu, who was illiterate, instructed that his refusal be recorded, in writing, by SI Rajnikant (PW-9), on the original notice which was, thereafter, read over to Prabhu. Prabhu, thereafter, affixed his left hand thumb impression under the said note. SI Rajnikant (PW-9) requested five or six public persons, who had gathered at the spot, to join the investigation, but they refused.

4. SI Rajnikant (PW-9), thereafter, conducted the search of Sikodh. The red and blue coloured bag, being carried by him, was found to contain a black, slab-type substance, in a transparent polythene. On being tested, using the Field Drug Testing Kit carried by SI Rajnikant, the substance was found to be charas, 2 kg in weight. From the said substance, two samples, of 50 grams each, were recovered, and kept in two separate polythene bags, which were tied with rubber bands and converted into two cloth pullandas, marked "A" and "B". The remaining quantity of charas, weighing 1.9 kg, was kept in the same transparent polythene, in the red and blue coloured bag, of which a third pullanda was prepared, marked "C". The Forensic Science Laboratory (FSL) form was filled. The seal "RKS" was affixed on all the three pullandas, as well as on the FSL form. After use thereof, the seal was handed over to HC Kanwal Singh (PW-3). All th