Non-compliance with the mandatory provisions of section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 led to the dismissal of the appeal.

ORDER :

1. The present application has been filed by the applicant/appellant seeking condonation of delay in filing the appeal. The applicant has given the detailed reasons for not preferring the appeal within the statutory period of limitation. The Registry of this Court has reported that there is delay of 182 days in filing the appeal.

2. We are satisfied with the reasons furnished by the applicant in the application duly supported with an affidavit for not preferring the appeal within the statutory period of limitation. As such, the delay of 182 days in filing the appeal is condoned.

3. Condonation Application No. 118 of 2017 stands disposed of.

4. Application seeking leave to file appeal is taken on board.

5. The applicant/appellant through the medium of the instant application seeks leave to file appeal against the judgment dated 25.02.2017 passed by the learned 1st Additional Sessions Judge, Jammu (hereinafter to be referred as the trial court) in case State of J&K vs. Prabhjot Singh alias Kala arising out of FIR No. 84 of 2010 for commission of offences under sections 8, 20 and 21 of the Narcotic Drugs Psychotropic Substances, Act, 1985 (for short the Act).

6. Heard Sh. Aseem Sawhney, learned Additional Advocate General and perused the trial court judgment.

7. The learned trial court has acquitted the respondent primarily on the ground that the mandatory provisions of section 50 of the Act have not been followed and that there was a delay of ten days in sending the samples of contraband to the Forensic Science Laboratory, particularly when they were seized on 18.04.2010 and also that the prosecution has neither examined any witness including the ‘Malakhana’ in-charge nor has produced any other documentary evidence to demonstrate that the samples were kept in a safe custody.

8. The prosecution story is that on 18.04.2010, the Police Party comprising of PW-1 ASI Pritam Singh, PW-2 Head Constable Mahesh Raj, PW-4 Sgct. Kuldeep Kumar and PW-5 Sgct Susheel Kumar, under suspicious circumstances searched the accused, respondent herein and recovered 1600 Paravan Spas Capsules from his possession while they were on patrolling duty without uniform at Khalsa Chowk, Nanak Nagar.

9. The prosecution has examined as many as six witnesses out of 12 cited witnesses, namely, PW-1 ASI Pritam Singh, PW-2 Head Constable Mahesh Raj, PW-4 Sgct Kuldeep Kumar, PW-5 Sgct Susheel Kumar, PW-7 Amit Dubey and PW-8 Rohit Koul.

10. A perusal of the statements of the witnesses, namely, ASI Pritam Singh, PW Mahesh Kumar, PW Sgct Kuldeep Kumar and PW Sgct Sushil Kumar reveal that 1600 Paravan Spas Capsules were recovered from the search of the respondent on 18.04.2010.

11. It is admitted fact that no notice under section 50 of the Act was served upon the respondent so as to seek his consent as to whether he wanted to get himself searched in presence of a Magistrate or a Gazetted Officer. Needless to say that the compliance of section 50 of the Act is mandatory and in no way, the same can be dispensed with. Further, from the perusal of the evidence, it is revealed that there is no evidence on record as to where the samples were kept after the alleged capsules were recovered from the respondent. The prosecution has neither produced the ‘Malakhana Register’ nor has examined the Malakhana In-charge so as to demonstrate the place where the samples were kept during the intervening period after its recovery on 18.04.2010 to 29.04.2010, when the same were forwarded to the FSL. More so, a perusal of the record reveals that the Investigation Officer has not been examined by the prosecution. Investigating Officer in NDPS cases is one of the most important witnesses and it is his duty to effect proper seizure, prepare samples and to place the samples in proper and safe custody so as to negate every chance of tempering with the samples. As such, non examination of Investigating Officer has caused prejudice to the samples.

12. In view of all what has been discussed above, no frui