The main legal point established in the judgment is the requirement for the prosecution to establish its case beyond reasonable doubt, and the court's reliance on inconsistencies and doubts in the evidence presented to acquit the respondent.

JUDGMENT

Vibhu Bakhru, J. - The State has filed the present petition seeking leave to appeal against a judgment dated 29.08.2019 passed by the Additional Sessions Judge-03 (Shahdara District), Karkardooma Courts, whereby the respondent was acquitted of the charge under Section 20 of the Narcotics and Psychotropics Substances Act, 1985 (hereafter the ''NDPS Act''). The State contends that the Trial Court had erred in not appreciating the evidence on record and for taking into account minor discrepancies in the testimonies of the prosecution witnesses and acquitting the respondent (accused) on the said basis.

2. The case of the prosecution is that on 10.02.2016, ASI Devi Ram/ IO (PW3), HC Sardar Singh (PW4), and Ct. Sunil (PW2) were on patrolling duty and at about 3:30 pm, they reached Peeli Mitti Ground near TLM Hospital where they saw the accused (respondent herein) sitting by the side of the road on a white plastic sack. On smelling the odour of ganja coming from the bag, they intercepted the accused and information was conveyed to the SHO, who gave directions to conduct the proceedings. On interrogation, the accused disclosed his name and the IO prepared a notice under Section 50 of the NDPS Act and apprised the contents of the notice to the accused. The accused was also apprised by the IO regarding his legal right of being searched in presence of a gazetted officer or Magistrate. However, the accused neither searched the patrolling party nor exercised his right to be searched before a Gazetted Officer or Magistrate at the spot. The accused stated that he was illiterate and could only sign.

3. Thereafter, the IO searched the accused but nothing incriminating was found in his possession. When the IO opened the sack, a substance, which looked like ganja was found. Thereafter, the IO sent HC Sardar Singh (PW4) to PS Nand Nagari and he returned with an electronic weighing machine at the spot. The said weighing machine was not functional as it was not charged; it was made functional by stopping a TATA 407 on the spot and powering the weighing machine with the battery of that vehicle. The entire ganja, along with the plastic sack, were weighed and it was found to be 37 kgs. The recovered ganja was mixed randomly and two samples of 1 kg each were taken out and kept in two transparent jars and the samples were wrapped in white cloth and two pullandas were prepared and sealed with the seal of DRS. The remaining ganja (i.e. 35 kgs) was sealed in a white plastic sack and the mouth of the sack was also sealed with the seal of DRS.

4. The Trial Court held that the requirement of Section 50 of the NDPS Act had not been complied to in the present case and the same was necessary. The Trial Court came to the said conclusion by observing that the original notice under Section 50 of the Act (Ex. PW2/C), as well as the carbon copy of the original notice (Ex. PW-2/F), both bore the reply of the accused. This indicated that the notice was served after writing the reply of the accused. The fact that the notice with the reply was served upon the accused proved that the requirement under Section 50 of the NDPS Act was not complied with.

5. The Trial Court also noted that there was an inconsistency in the testimony of PW2 - HC Sunil regarding the service of the notice under Section 50 of the NDPS Act. During his cross examination by the learned APP (dated 21.08.2018), he stated that a carbon copy of the notice was served on the accused. Whereas, in his further examination in chief (dated 24.08.2018), he stated that the original notice under Section 50 of the NDPS Act was served by the IO upon the accused. Due to the apparent contradiction, he was cross examined again, wherein he admitted that the carbon copy of the notice (Ex. PW2/F) was served on the accused and not the original as stated by him during the identification of the notice. On the basis of the same, the Trial Court held that there was a doubt regarding the service of the statutory notice