The absence of independent witnesses does not invalidate the prosecution's case if police testimonies are credible, and Section 50 of the NDPS Act is not applicable when recovery is from a bag.

JUDGMENT :

RAKESH KAINTHLA, J.

1. The present appeal is directed against the judgment dated 4.6.2016 passed by learned Special Judge-IV, Kangra at Dharamshala vide which the appellant (accused before the learned Trial Court) was convicted for the commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) and order dated 6.6.2016 vide which, he was sentenced to undergo rigorous imprisonment for five years, pay a fine of Rs. 20,000/- and in default of payment of fine to further undergo simple imprisonment for two months. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan before the learned Trial Court against the accused for the commission of an offence punishable under Section 20 of the NDPS Act. It was asserted that ASI-Tibeti Ram (PW9), ASI Bhim Chand, ASI Sunil Kumar (PW4), HHC Ravinder Awasthi (PW1), HHC Tharchan Negi (PW5), HHC Manjeet Singh (PW2), HHC Sanjay and LC-Anita Kumari were on patrolling duty on 6.5.2015 at about 12:30 pm on Macleodganj Dal Lake Road under the supervision of Inspector-Naresh Kumar. A secret information was received that accused Nanu Oli alias Ram Chand was sitting on a bench near Hari Bawri. He had a polythene containing charas. In case of his apprehension, a huge quantity of charas could be recovered. The information was reduced into writing (Ext. PW9/B) and was sent to DSP through HHC Ravinder Singh (PW3). The place was lonely and deserted. The time taken to associate independent witnesses would have delayed the proceedings and the accused would have destroyed the case property in the meantime; hence, ASI Sunil Kumar (PW4) and ASI Bhim Chand were associated as witnesses. The policy party went towards Hari Bawri. The accused was found sitting on the bench. The police apprehended him. He revealed his name as Nanu Oli alias Ram Chand. He was told about the information and was also asked to exercise his option under Section 50. The accused opted to be searched by the police. Memo (Ext. PW4/B) was prepared. The police party gave their search to accused and nothing incriminating was found in their possession. Memo (Ext. PW4/A) was prepared. The police searched the polythene bag and found a transparent polythene (Ext. PX2) containing a black-coloured stick-like substance (Ext. Px1). The substance was tested with a drug detection kit and the result was found to be positive for charas. The charas was weighed with polythene and its weight was found to be 700 grams. The charas was put in the transparent polythene and transparent polythene was put in the polythene from which they were recovered. They were put in a cloth parcel (Ext. P1) and the parcel was sealed with 6 impressions of seal ‘M’. The seal impression (Ext. PW4/C) was taken on a separate piece of cloth. NCB-1 form (Ext. PW9/B) was filled in triplicate. The parcel was seized vide seizure memo (Ext. PW4/B). Rukka (Ext. PW9/C) was prepared and was handed over to HHC-Tharchan Negi (PW5) with a direction to carry it to the police station. ASI Tibeti Ram conducted the investigation on the spot. He prepared the site plan (Ext. PW9/D) and recorded the statements of witnesses as per their version. The accused was arrested and a memo (Ext. PW4/E) was prepared. FIR (Ext. PW6/B) was registered in the Police Station. Case property was handed over to Inspector Mangat Ram (PW8) who re-sealed the parcel (Ext. P1) with 6 seals of seal ‘N’. He filled columns no. 9 to 11 of the NCB-I form and put the seal impression on the form. He obtained the sample seal (Ext. PW8/C) and issued the re-sealing certificate (Ext.PW6/B). He handed over the case property, documents, and sample seal to MHC Prakash Chand (PW6) who deposited the same in Malkhana and made the entry in the Malkhana Register at Serial No. 337. He handed over the