Point of Law: NDPS Act – Search and seizer of contraband – Conviction set aside - prosecution has not complied with the provisions of Section 42 of NDPS Act as the information alleged to have been received regarding the occurrence was not recorded in writing and forwarded to the superior officer.

JUDGMENT :

1. These appeals are directed against the conviction and sentence recorded by the learned Principal Sessions Judge, Jammu (hereinafter to be referred as the "trial court") vide his common judgment dated 24.04.2012 and order dated 26.04.2021, whereby the appellants herein have been convicted for the offence punishable under Section 20 of NDPS Act and sentenced to undergo rigorous imprisonment for a period of ten years and a fine of Rs.1.00 lac each. In default of payment of the fine, the appellants would undergo imprisonment for a further period of three years. The said conviction and sentence recorded by the trial Court has been challenged by the appellants on the following grounds:

(i) That the judgment and order impugned are contrary to law, therefore, the same are required to be set aside; under Section 161 Cr.P.C;

(ii) That the judgment and order impugned are liable to the set aside on the ground that the same are contrary to the evidence on record. It is stated that the prosecution witnesses have not supported the prosecution case as required in terms of NDPS Act;

(iii) That the judgment and order impugned are liable to be set aside on the ground that no independent material witness has been examined;

(iv) That the judgment and order impugned are liable to be set aside on the ground that the trial Court has not appreciated the evidence in its right perspective;

(v) That the judgment and order impugned are also required to be quashed on the ground that the police witnesses, who have deposed against the appellants, have also materially contradicted themselves from their statements recorded

(vi) That the trial Court has neither properly appreciated the evidence, nor has applied the law in right perspective;

(vii) That the judgment and order are not sustainable in the eye of law and, thus, required to be set aside on the ground that there is a violation of mandatory provisions;

(viii) That the judgment and order are also liable to be set aside on the ground that it has not been proved that the appellants were in possession of the alleged seized contraband; and

(ix) That the judgment and order impugned are required to be set aside on the ground that none of the witnesses has supported the prosecution story and even the seizure memo has also not been proved.

At the outset, it may be stated that the during the pendency of these appeals, appellant Thomas Massi in Cr. Appeal No. 46/2012 expired, therefore, vide order dated 27.12.2018 passed by this Court, his legal heir (wife) was allowed to be substituted as appellant No.1.

3. Heard learned counsel for the appellants and Mr. Aseem Sawhney, learned AAG, appearing for the respondent-State.

4. Learned counsel appearing for the appellants submit that there is no evidence on record to prove the charge for which the appellants have been convicted and sentenced. They further submit that the investigation has been conducted in gross violation of the provisions of NDPS Act. It is submitted by the learned counsel for the appellants that as per the prosecution case, there was prior information and it was on the basis of said alleged prior information that Dy. S.P. proceeded towards the spot, but before proceeding towards the spot on prior information, Dy. S.P. was required to comply with the mandatory provisions of Section 42 of NDPS Act, i.e., before proceeding towards the spot he has to give information in writing to his superior officer, which was not done in this case. It is also submitted by the learned counsel for the appellants that the search as per the prosecution story was conducted and the contraband was recovered from their personal search but again in violation of Section 50 of NDPS Act the search as claimed by the police has been conducted. As per the provisions of Section 50 of NDPS Act, before conducting personal search, an option is required to be given in writing to the person sought to be searched for his search in the presence of a Gazetted Officer or before a Magistrate