Mandatory compliance with Section 50 of the NDPS Act is essential for lawful searches; failure to do so renders convictions unsustainable.

JUDGMENT :

Rajesh Bhardwaj, J.

This appeal has been filed by the appellant impugning the order dated 11.03.2016 whereby the appellant has been convicted by the learned Judge, Special Court, Patiala under Section 18(C) of the NDPS Act and sentenced for 01 month and 04 days and to pay fine of Rs.3,000/-, in default of payment of fine, to undergo further rigorous imprisonment for 07 days.

2. Succinctly, the facts of the prosecution case are that on 21.05.2014, the police party headed by ASI Narinderpal Singh while patrolling, at about 10:30 AM, saw 2-3 persons coming on Scooty who on seeing the police tried to turn back however, while doing, so, the Scooty skidded and they fell down. They were over-powered by the police party. On suspicion, they were apprehended by the police party. On asking, driver of Scooty disclosed his name as Lakhwinder Singh whereas, the person riding pillion disclosed his name as Rajinder Singh. ASI Narinderpal Singh suspecting them to carrying some intoxicant substance gave them an offer to be searched. On reposting confidence in him, their personal search was carried out by him and the search of the right pocket of Lakhwinder Singh (apellant). 200 grams of opium was revered and that on the search of Rajinder Singh, 50 grams of opium was recovered from his pocket. They failed to produce any license for possession of the same and hence, the FIR was registered and both were arrested by the police. The investigation commenced. The samples of the contraband were taken. On completion of the investigation, challan was presented and the charges were framed under Section 18 of the NDPS Act. Thereafter, the trial commenced. On conclusion of trial, learned trial Court found the charges having been proved by prosecution against both the accused convicted them vide order dated 11.03.2016 and both of them were sentenced for an imprisonment for a period of 01 month and 04 days. Aggrieved by the same, the appellant is before this Court by the way filing the present appeal.

3. Learned counsel for the appellant has vehemently contended that the appellant was falsely implicated in this case and the learned trial Court has misread the evidence produced by the prosecution, it has been vehemently argued by learned counsel that as per case of prosecution, the appellant along with co-convict was coming on Scooty 21.05.2014 at about 10:30AM. This it is evident that alleged recovery was made from the appellant in board day light in a public place. However, there is nothing on record that the police party joined any independent witness. She submits that non-joining of the independent witness creates a serious doubt about the recovery made from the appellant in a public place. She has further submitted that the recovery in the present case has been made by the police party on search of right pocket of the pant of appellant. It is submitted that thus, as per case of prosecution from personal search, recovery was made from the person of appellant and not form any article being carried by the appellant. It is submitted that as per the case of prosecution, this recovery was effected by the investigating officer himself and not in presence of Gazetted Officer or Magistrate. She submits that as per the settled position of law compliance of Section 50 of the NDPS Act is mandatory in nature. It is submitted that search of the appellant by investigating officer himself is totally in violation of the mandatory provisions of Section 50 of NDPS Act and thus the conviction is unsustainable in the eyes of law. She has further submitted that the CFSL form was filed at the spot however, the same was not made part of the challan. It is submitted that Form 29 is a valuable safeguard to ensure the sealed sample however the same not being part of the challan is a serious violation in the investigation conducted which falsify the alleged recovery from the appellant. She advanced her arguments while contending that ASI Narinderpal Singh produced the case p