The mandatory nature of Section 50 of the NDPS Act and the need for proactive measures in investigation.

JUDGMENT

Pankaj Jain, J. (Oral) - The appellant has been convicted for offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short, 'the NDPS Act') in case FIR No.124 dated 20th of June, 2003, registered at Police Station Sadar, Pathankot. He has been sentenced to undergo Rigorous Imprisonment for 2 years and to pay fine of Rs.2500/-. In default of payment of fine he is to undergo further Rigorous Imprisonment for 2 months.

2. As per the prosecution, truck bearing registration No.PB-04-B-9884 driven by the appellant was intercepted at Naka. On checking of the truck it was found that one bag of white colour was lying behind the driver's seat. In terms of Section 50 of the NDPS Act, appellant was offered to exercise his option to get the search conducted in presence of Investigating Officer or the Gazetted Officer or the Magistrate. Appellant opted to get the search conducted in the presence of Gazetted Officer. Memo Exhibit PC was prepared. Deputy Superintendent of Police, a Gazetted Officer was called. Gazetted Officer disclosed his identity to the accused and again gave accused offer to get the search conducted in his presence or in the presence of some other Gazetted Officer, or Magistrate. It is claimed that the accused reposed faith in the Deputy Superintendent of Police and signed memo Exhibit P-D. Truck was searched. From the plastic bag poppy-husk weighing 12 kgs. 200 grams was recovered. Sample and bulk parcels were drawn. From the personal search of the accused currency notes amounting to Rs.11080/- were recovered. Regarding this separate recovery memo was drawn. Sealed parcels of the contraband recovered were produced before the Illaqa Magistrate in compliance of Section 52-A of the NDPS Act. After completion of investigation, Report under Section 173 Cr.P.C. was filed. The appellant was charged for offence punishable under Section 15 of the NDPS Act. Trial Court after considering the evidence on record held the appellant guilty of being in conscious possession of a narcotic substance i.e. poppy-husk weighing 12 kgs. 200 grams and, thus, held him guilty of offence punishable under Section 15 of the NDPS Act and awarded him sentence as mentioned hereinabove.

3. Mr. B.D. Sharma, Advocate appearing for the appellant has taken this Court through the testimony of PW-3 SI Joga Singh, PW-6 DSP (HQ.) Hatinder Singh and that of PW-7 Inspector Chhaju Ram-the Investigating Officer to submit that there are major discrepancies w.r.t. the time of accused being intercepted at the Naka, mode by way of which Gazetted Officer was called and w.r.t. source of weights and measures. He further submits that apart from major discrepancies in the oral testimonies of the material witnesses there are material discrepancies even in the written documents. He claims that when a consent memo Exhibit PC is compared with the Ruqa Exhibit P-J both authored by IO Chhaju Ram, it is a clear case of false implication. While recording consent memo Exhibit PC, it is recorded that an offer was given to the accused to get him himself searched by Investigating Officer or by the Gazetted Officer or by the Magistrate whereas in the Ruqa recorded on the same day and probably at the same time it has been stated that the IO offered the appellant to get himself searched by the IO or by some Gazetted Officer. Apart from this he also submits that bare perusal of the consent memos recorded at the time of search and seizure would indicate that the same bear FIR number. The argument raised is that the mentioning of FIR number even prior to registration of FIR itself would be a circumstance to raise doubt w.r.t. the investigation carried out by the agencies. He submits that it shows that even prior to search, the Investigating Authorities were sure that the contraband will be recovered leading to registration of FIR which clearly points towards false implication of the appellant at the hands of the agencies. In support of his con