Offering third option of police search under Section 50 NDPS Act, alongside Magistrate or Gazetted Officer, vitiates recovery; strict compliance mandatory, non-compliance plus discrepancies entitle accused to acquittal.

JUDGMENT :

RAKESH KAINTHLA, J.

1. The present appeal is directed against the judgment dated 24.11.2014, passed by learned Special Judge-III, Kangra at Dharamshala, District Kangra, H.P., (learned Trial Court) vide which the appellant (accused before learned Trial Court) was convicted of the commission of an offence punishable under Section 20 (b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as ‘the ND&PS Act’) and was sentenced to undergo rigorous imprisonment for one year, pay a fine of Rs.10,000/- and in default of payment of fine to undergo further simple imprisonment for three months for the commission of the aforesaid offence. (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 against the accused for the commission of an offence punishable under Section 20 of the ND&PS Act. It was asserted that ASI Balbir Singh (PW11) and ASI Prem Chand (not examined) were investigating into the FIR No. 38 of 2009 dated 13.02.2009 registered at Police Station Dharamshala for the commission of an offence punishable under of the NDPS Act at new taxi stand Dharamshala on 13.02.2009 at 5:50 P.M. Prabhat Singh disclosed during the interrogation that accused Sonu Kumar was selling charas near HRTC work shop, Dharamshala, and a huge quantity of charas could be recovered by his search. The information was reduced into writing (Ext.PW5/A) and was sent to the Superintendent of Police Kangra through Constable Tungal Singh (PW5). ASI Balbir Singh (PW11), Constable Suman Kumar (PW2) and HHG Madan Lal (not examined) went towards the HRTC workshop in the official vehicle being driven by HHC Ramesh Chand (PW1). They found the accused, Sonu Kumar alias Ajay Kumar, on the left side of the road. ASI Balbir Singh told the accused that he had a right to be searched before a Magistrate or the Gazetted Officer. The accused consented to be searched by the police vide memo (Ext.PW2/A). The police gave their personal search to the accused, and nothing incriminating was found in their possession. Memo (Ext.PW2/B) was prepared. The personal search of the accused was conducted. A white plastic envelope containing 20 sticks of charas was recovered from the jacket of the accused. The police checked the sticks and confirmed them to be charas. Two samples of 25 grams each were separated on the spot for chemical analysis. These were put into two separate polythene envelopes. The remaining 140 grams of charas were put in the plastic envelope. The plastic envelope was put in the cloth parcel. Each parcel was sealed with three impressions of seal ‘A’. The seal impression (Ext.PW11/A) was taken on a separate piece of cloth, and the seal was handed over to witness Suman Kumar (PW2) after its use. NCB-1 Form (Ext.PW11/E) was filled in triplicate, and a seal impression was put on the form. Rukka (Ext.PW11/D) was prepared and was handed over to HHC Ramesh Chand (PW1) with a direction to carry it to the Police Station. ASI Balbir Singh (PW11) investigated the matter. He prepared the site plan (Ext.PW11/B) and re