JUDGMENT :

Harpreet Singh Brar, J. (Oral) 

1. The prayer in the present appeal is to set-aside the judgment of conviction and order of sentence dated 05.12.2006 passed by learned Judge, Special Court, Jalandhar whereby the appellant was convicted and sentenced for the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter 'the NDPS Act'), in the case stemming from FIR No.89 dated 12.7.2002, under Section 15 of the NDPS Act at Police Station Nurmahal.

2. The appellant was sentenced as mentioned below:

3. Brief facts of the case are that on 12.7.2002, a police party headed by ASI Joginder Singh was on patrolling duty and was present at bus-stand Samravan and when they were going towards village Daduwal, they saw the appellant travelling on a scooter carrying a bulky bag. On seeing the police party he became perplexed and tried to turn back, however, on the basis of suspicion, he was apprehended with 25 Kgs of Poppy Husk in the presence of Deputy Superintendent of Police and one sample of which was drawn from the bag. The sample of 250 gms was then sent to the chemical examiner for its examination and subsequently, FIR (supra) was registered under Section 15 of the NDPS Act.

4. Learned amicus curiae submits that the learned Court below has fallen into grave error in convicting the appellant, as his guilt has not been proved beyond reasonable doubt. She contends that the entire case of the prosecution is based on the testimonies of official witnesses without any corroboration. Further, one person namely Ravinder Singh was joined in the investigation being an independent witness, however, he was not examined by the prosecution. Additionally, there has been an unexplained delay of 26 days in sending the representative sample of the alleged contraband to the Chemical Examiner, which leaves it vulnerable to tampering. The mandatory provisions of the NDPS Act have also not been complied with. Learned amicus curiae also submits that a sentence of 01 year and 06 months had been imposed upon the appellant but he has already spent a period of 02 years, 03 months and 29 days in custody. As such, he has been kept in custody for 09 more months than what was warranted.

5. Per contra, learned State counsel opposes the prayer of the appellant and submits that the appellant has been convicted by learned Additional Sessions Judge, Jalandhar vide judgment dated 11.07.2007 in a case stemming from FIR No.02 dated 08.01.2004 registered under Section 15 of the NDPS Act at Police Station Nurmagal, while, production warrants have been issued in another case stemming from FIR No.66 dated 22.03.2000 under Section 15 of the NDPS Act at Police Station Phillaur. He further submits that the learned Court below has passed a well-reasoned judgment based on correct appreciation of evidence available on record as such, and being a habitual offender, the appellant does not deserve any leniency.

6. Having heard learned counsel for the parties and after perusing the record with their able assistance, it transpires that the appellant was convicted for being in possession of 25 kg of Poppy Husk, i.e. intermediate quantity, attracting the offence of Section 15 the NDPS Act. The contraband was recovered from a bag being carried by the appellant and no instance of personal search has been recorded. As such there was no need to issue notice under Section 50 of the NDPS Act. A two Judge Bench of the Hon'ble Supreme Court in Stale of Rajasthan vs. Parmanand and another (2014) 5 SCC 345 speaking through Justice Ranjana P. Desai has held as under:

"75. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS