Non-compliance with the mandatory provisions of Section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985 for conducting searches can lead to the acquittal of the accused and the failure of the prosecution's case.

Rajiv Sharma, J.

The instant appeal is instituted against Judgment dated 1.10.2015 rendered by the learned Special Judge-II, Kangra at Dharamshala, District Kangra (HP) in S.T. No. 324/2013, whereby appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), has been convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1.00 Lakh, and in default of payment of fine, to further undergo rigorous imprisonment for a period of two years for the commission of offence under Section 15 of the Act. Period of detention has been ordered to be set off as per Section 428 of the Code of Criminal Procedure.

2. Prosecution case, in a nutshell, is that on 7.6.2013 at about 2.00 AM, police party headed by Inspector/ SHO Balbir Singh was on patrolling at Kandrori alongwith SI Chain Singh, ASI Prem Singh, ASI Prem Kumar, HC Mohinder Singh, HC Inderjeet, HHC Santosh Kumar, Constable Purshotam Singh, Constable Surinder Singh and HHC Jaswant Singh, in the official vehicle. A secret information was received that the accused was carrying a huge quantity of poppy straw in a Swift Dzire Car No. PB-07AG-4949. Rukka was sent to the Police Station through HC Jaswant Singh for the registration of the case. Information under Section 42 (1)(2) of the Act was sent to the SDPO Nurpur through Constable Purshotam Singh. Independent witnesses Jagmohan and Rakesh were associated. At 4 PM, aforesaid Swift Dzire Car was intercepted on Naka near old Kangra Stone Crusher, Damtal. Accused tried to run away. He was chased and apprehended. On checking the car, 90 polythene bags and two gunny bags of poppy straw were found in the car and three gunny bags of poppy straw were found in the dickey of the car, all containing 131.6 kg of poppy straw/husk. The contraband so recovered was sealed in 11 gunny bags with seal impression ‘H’. After obtaining specimen seal impression on a separate piece of cloth, the seal was handed over to witness Rakesh Kumar. Contraband was taken into possession alongwith car vide a separate seizure memo in the presence of witnesses. NCB form was filled in. IO prepared site plan. He recorded the statements of the witnesses. Contraband was sent to the FSL Junga for chemical analysis. Investigation was completed. Challan was put in the Court after completing all the codal formalities.

3. Prosecution has examined as many as fifteen witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He denied the case of the prosecution. He was convicted by the learned trial Court as noticed above. Hence, this appeal.

4. Mr. N.S. Chandel, Advocate, has vehemently argued that the prosecution has failed to prove case against the accused.

5. Mr. M.A. Khan, Additional Advocate General, has supported Judgment dated 1.10.2015

6. We have heard the learned counsel for the appellant and also gone through the record carefully.

7. Jagmohan (PW-1) is an independent witness. He was doing the business of stone crusher supplier. He was Ward Panch of Gram Panchayat Sirat. He did not remember the date of occurrence but he was called by the police at 9 AM at Damtal Police Chowki. He saw 5-6 bags containing poppy husk in the police post. Police obtained his signatures in the police post. He did not know from whom the poppy husk was recovered. His statement was not recorded by the police. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied that he was called alongwith Rakesh Kumar Pradhan, Gram Panchayat, Sirat by the police on 7.6.2013 at 3 AM on the spot. He denied that the police placed a Naka and having the information of the accused regarding the contraband in the car of accused bearing registration NO. PB-07AG-4949. He denied that said car was coming from Muk