IMPORTANT POINT
Mandatory provisions of the NDPS Act must be strictly followed; non-compliance leads to invalidation of search and recovery.

JUDGMENT :

Mr. Karamjit Singh, J.: (Oral) - The above-mentioned two appeals have been directed against the judgment of conviction and order of sentence dated 20.07.2018 passed by Judge, Special Court, Patiala in case having FIR No.38 dated 09.05.2015 under Section 21/29 of NDPS Act, Police Station Lahori Gate, Patiala vide which the appellants were convicted and sentenced to RI for a period of 6 months each with fine of Rs.5,000/- each and in default of payment of fine to further undergo RI for 1 month under Section 21(b) of NDPS Act while third accused Avtar Singh @ Tari was acquitted of all the charges.

2. The brief facts of case of the prosecution are that on 09.05.2015 ASI Gurmeet Singh who was heading a police party received secret information that Amarjit Singh (appellant in CRA-S-3025-SB-2018), after procuring smack from Vikas Kumar (appellant in CRA-S-2974-SB-2018), used to supply the said contraband to one Avtar Singh @ Tari who at that time was lodged in Central Jail Patiala. Further, on that day Amarjit Singh had gone to Dhiru Ki Majri to bring smack from Vikas Kumar. On the basis of the said secret information, police party headed by SI Gurmeet Singh laid naka near Sheranwala Gate, Patiala and at about 2 PM, Amarjit Singh who was seen coming from the side of Fountain Chowk, was apprehended on the basis of suspicion and was apprised of his legal right of personal search in presence of Magistrate or Gazetted officer. Amarjit Singh reposed confidence in ASI Gurmeet Singh and to this effect, separate consent memo Ex.PW-4/A was prepared. The same was signed by Amarjit Singh and attested by the Investigating Officer namely ASI Gurmeet Singh. On the personal search of Amarjit Singh 10 grams of smack was recovered from the right pocket of his trouser, out of which two samples of 2 grams each were separated and converted into two samples parcel. The bulk parcel having 6 grams of smack and said two sample parcels were sealed by the investigating officer with his seal bearing impression GS. Separate sample seal impression Ex.P-1 was also prepared and seal after use was handed over to ASI Tejinder Singh. The Investigating Officer also prepared Form No.M-29 and the aforesaid case property was taken into possession vide memo Ex.PW-4/B. The investigating officer sent ruka Ex.PB to the police station and consequently, FIR Ex.PB/1 was registered in the present case. The rough site plan of place of recovery Ex.PW-4/C was prepared and on completion of the proceedings at the spot, report Ex.PW-4/M under Section 57 of NDPS Act was sent to Halka G.O. from the spot itself.

3. Thereafter, while on the way to police station, the police party headed by ASI Gurmeet Singh, apprehended Vikas Kumar on the pointing of Amarjit Singh and he was made aware of his legal right to be searched in presence of Magistrate or Gazetted officer but Vikas Kumar reposed confidence in ASI Gurmeet Singh and to this effect, consent memo Ex.PW- 4/F was prepared which was signed by Vikas Kumar and attested by investigating officer. On personal search of Vikas Kumar, 10 grams of smack was recovered from right pocket of his trouser, out of which two samples of 2 grams each were separated. Aforesaid two sample parcels and bulk parcel having 6 grams of smack were sealed by investigating officer with his seal having impression GS. Separate sample seal impression Ex.P-2 was prepared along with Form No.M-29. The aforesaid articles recovered from Vikas Kumar were seized by the police vide separate memo Ex.PW- 4/G which was attested by the investigating officer.

4. On return to the police station, the entire case property was produced before officiating SHO/SI Hakam Singh who after verifying the facts of the case appended his seal bearing impression HS on the entire case property and then the same was deposited in malkhana, while Amarjit Singh and Vikas Kumar were sent to police lock up. On the next day, the entire case property along with accused Amarjit Singh and Vikas Kumar