A joint consent memo under Section 50 of the NDPS Act is not valid and violates the mandatory provisions of the Act. The prosecution must prove its case beyond reasonable doubt in order to secure a conviction.

Sabina, J.

Appellants had faced trial in F.I.R. No. 312/2002 registered at Police Station Sadar, District Sikar, under Section 8/18(c) and 8/20 Narcotic Drugs and Psychotropic Substances Act 1985 (hereinafter referred to as 'the Act').

2. Trial court vide judgment/order dated 16.4.2010, ordered the conviction and sentence of the appellants under Section 8/18(c) and 8/20(b)(II)(C) of the Act. Hence, the present appeal by the appellants.

3. Prosecution story in brief is that on 5.12.2002 Mool Chand was posted as Traffic Police Incharge. During checking at about 9.50 a.m., it was found that one jeep was coming from Laxmangarh side. The number of the jeep was not clearly visible. The said official signaled the jeep to stop and asked the driver to show the papers of the vehicle. One more person was sitting next to the driver. Driver could not produce the papers of the vehicle. The person sitting next to the driver said that they should be allowed to go and offered Rs. 5,000/- to the official. On enquiry by the official Mool Chand, the said person disclosed that they were carrying Ganja and Opium. Mool Chand sent a wireless message to Prakash Kumar Sharma, Circle Officer to reach the spot and take over the investigation of the case. Thereafter Prakash Kumar Sharma reached the spot. Notice under Section 50 of the Act was given to the accused and they offered to get themselves searched in the presence of official Prakash Kumar Sharma. Ajay Sharma and Sanatan Sharma were joined as independent witnesses. When accused Rohitash was searched, it was found that he had tied a green colour cloth on his waist and when the same was opened it contained a polythene bag. From the said bag opium was recovered. From the jeep bag containing Ganja was recovered. When the accused Mahender Singh was searched, it was found that he had also tied a green colour cloth on his waist. When the said cloth was opened, a polythene bag was recovered. From the said polythene bag opium was recovered. Rs. 5,000/- were also recovered from the personal search of accused Mahender. From the Tool Box of the jeep Rs. 38,500/- were recovered. Opium recovered from accused Mahender weighed 505 grams whereas opium recovered from accused Rohitash weighed 500 grams. From the recovered opium two samples weighing 50 grams each were separated and were made into sealed parcels. From the bag two samples weighing 500 grams each were separated and were made into sealed parcels. Case property was taken in possession.

4. After completion of investigation and necessary formalities, challan, was presented against the appellants.

5. In order to prove its case, prosecution examined 21 witnesses during trial. After the close of the prosecution evidence, appellants when examined under Section 313 Code of Criminal Procedure 1973 (hereinafter referred to as Cr.PC.'), prayed that they were innocent and had been falsely involved in this case.

6. Trial Court vide judgment/order dated 16.4.2010 ordered the conviction and sentence of the appellant under Section 8/18(c) and 3/20(b) (II) (C) of the Act. Hence, the present appeal by the appellants.

7. Learned counsel for the appellant has submitted that the appellants me liable to be acquitted of the charges framed against them as the prosecution had failed to prove its case. There was complete violation of mandatory provisions of Section 50 of the Act. A joint notice was allegedly given to the appellants under Section 50 of the Act. In fact the said notice had been manipulated at a later stage. Apart from Ex.R5 memo with regard to consent under Section 50 of the Act, none of the memos were signed by the appellants. The independent witnesses who had allegedly attested the memos had not supported the prosecution case during trial. Hence, the execution of the memos could not be said to have been duly proved on the record. In support of his argument, learned counsel has also placed reliance on the judgment of Hon'ble Supreme Court in the case of State o