Non-compliance with mandatory provisions of Sections 42(2) and 50 of the NDPS Act vitiates the search and recovery, leading to acquittal.

JUDGMENT :

Tarlok Singh Chauhan, J.

Aggrieved by the acquittal of the respondent under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short, “the Act”), the appellant-State has filed the instant appeal.

2. Briefly stated, the case of the prosecution is that on 31.3.2010 at about 7.30 P.M., when the police party headed by ASI Bodh Raj was present on the public road near Kainchi Mod Bhava bifurcation, they noticed the accused/respondent coming from Bagipul side and on seeing the police party, he got perplexed and tried to run away from the spot. On suspicion, the respondent was nabbed by the police party and thereafter he was informed by the Investigating Officer that police intended to carry out his personal search. The respondent was apprised about his right to be searched either before a Gazetted Officer or a Magistrate. However, the respondent consented to give his personal search to the police party. Consequently, the Investigating Officer gave his personal search. Thereafter the personal search of respondent was conducted and one white colour cloth was found tied around his waist. The police party opened the said cloth, in which 500 grams charas was alleged to have been found. The charas was weighed on the spot and thereafter it was put in the same white cloth and sealed in another cloth parcel with impression 'A'. The contraband was taken into possession vide separate recovery memo. The sample of seal was drawn by the Investigating Officer. The NCB form in triplicate was filled in. Rukka was prepared by the Investigating Officer and sent it to Police Station, Nirmand through HHC Diwan Chand. MHC registered the FIR and the case file was handed over to HHC Diwan Chand on the spot. Investigating Officer prepared the site plan and thereafter he along with the respondent came to the Police Station and deposited the case property along with relevant documents with the MHC who incorporated the entry of the same in his register.

3. During investigation, the case property was sent to chemical examination and Chemical Examiner's report was received. The Investigating Officer prepared special report and submitted the same to the SDPO. On the conclusion of investigation, the challan was prepared and presented in the court and the respondent was produced to face trial.

4. Upon consideration of the challan and other documents annexed therewith, the court finds prima facie case and accordingly, charges were framed against the respondent, to which he pleaded not guilty and claimed trial.

5. In order to prove its case, the prosecution examined as many as 8 witnesses and closed its evidence.

6. On the basis of evidence adduced by the prosecution, respondent was examined under Section 313 Cr.P.C. in which he denied all set of incriminating evidence led by the prosecution against him and stated that he was innocent and falsely implicated. However, the respondent despite opportunity did not choose to lead evidence in his defence.

7. The learned Special Judge after recording the evidence and evaluating the same acquitted the respondent as aforesaid, constraining the State to file the instant appeal.

8. At the outset, it needs to be noticed that one of the main grounds which weighed with the learned Special Judge for acquitting the respondent is non-compliance of Section 50 of the Act.

8. It is not in dispute that before carrying on with the search of the respondent, the prosecution chose to obtain the consent of the respondent vide Ex. PW6/A which is in vernacular and reads as under:-

9. It is shocking to note that the Investigating Officer admittedly even without conducting search of the person of respondent very well knew that he was carrying the contraband as is evident from the reading of the consent memo (supra).

10. Therefore, clearly it is a case of prior information and not that of chance recovery which requires strict compliance of provisions of the Act.

11. A perusal of consent memo would further go to indicate that t