Mandatory compliance with Section 50 of NDPS Act is imperative in cases of search of the body of the accused, and failure to comply renders the recovery of contraband suspect and the conviction unsustainable.

RAJESH BHARDWAJ. J.

1. The present appeal has been filed by the appellant against the order of conviction and sentence dated 1.6.2015 passed by learned Judge, Special Court, Chandigarh, whereby appellant had been convicted for the offence under Section 21 of NDPS Act and sentenced to undergo RI for 28 days.

2. Brief facts of the case are that SI Mohan Singh along with HC Kulwant Singh, Constable Sharandeep and Constable Ajay was on patrolling duty on 12.2.2014. A Naka was laid at the turn of Rehri Market, Sector 41, Chandigarh for checking the suspicious persons due to the increasing theft and snatching incidents taking place in the city. At about 6 pm, they stopped a person coming from the side of Sector 41-42, Chandigarh. On seeing the police party he got perplexed and started moving back. On suspicion he was apprehended. He took out a polythene from the right pocket of his pent and tried to throw the same, however, SI Mohan Singh caught hold his hand and prevented him from throwing the polythene. On checking the same it was found containing heroin. On the asking of SI Mohan Singh he disclosed his name as Harjit Singh. He failed to produce any licence for carrying the contraband recovered. On weighing, the same was found to be 10 grams. Two samples of 2 grams each were taken out of the polythene and were sent to the CFSL and the remaining 6 grams was kept in the same polythene. The same was taken into possession vide recovery memo Ex.PB. The accused was found to have committed an offence under Section 21 of NDPS Act. The Ruka Ex.PC was sent to the police station concerned on the basis of which FIR Ex.PD was registered. On the registration of the same investigation commenced. Appellant was arrested on the spot. On conclusion of the investigation challan was presented and charges were framed. The prosecution examined SI Mohan Singh, IO as PW-1, HC Kulwant Singh, the recovery witness as PW-2, SI Jaspal Singh, the second IO as PW-3, HC Vinod Kumar, who deposited the samples with CFSL as PW-4, SI Surender Gautam with whom the case property was deposited as PW-5, HC Yashpal, who prepared the site plan as PW-6 and Constable Parveen, who produced the case property before the court and thereafter deposited the same in Malkhana as PW-7. Besides these witnesses, documentary evidence was also produced. After conclusion of prosecution evidence, statement of the appellant was recorded under Section 313 Cr.P.C, wherein he pleaded innocence and false implication. However, he led no evidence in defence. Thereafter, learned Trial Court heard the arguments of both the sides and on conclusion of the proceedings learned Trial Court found the prosecution having proved the charges framed against the appellant and thus he was convicted and sentenced as stated above under Section 21 of the NDPS Act.

3. Learned counsel for the appellant has vehemently contended that the appellant had been falsely implicated in this case. He submits that as per case of the prosecution, recovery of the alleged contraband was effected from the appellant by SI Mohan Singh along with his team on 12.2.2014 at about 6 PM at the Naka laid on the turn of Rehri Market, Sector 41, Chandigarh. He submits that evidently the recovery was effected from the appellant at a public place but investigating agency did not join any independent witness. He submits that from the evidence produced on record, it is apparent that the investigating agency did not even try to associate any independent witness. It is submitted that SI Mohan Singh, PW-1 has deposed that the appellant tried to throw the polythene packet by taking out from his pocket but he prevented him from throwing the same and thus recovery was effected on suspicion from his hand. He submits that once the recovery of the contraband is effected from the hand of the appellant the same amounts to recovery made from the search of the body of the appellant and hence the statutory provisions of Section 50 of NDPS Act, which are mandatory