The main legal point established in the judgment is that the search, seizure, and arrest under the NDPS Act, particularly in cases of personal search, must strictly adhere to the procedures laid down in Sections 42 and 50. Failure to properly inform the accused of their rights and obtain independent consent renders the search invalid.

Sudhanshu Dhulia, J.

The above two criminal appeals of the appellants arise out of a common judgment dated 02.12.2011 passed by the Additional Sessions Judge/First Fast Track Court, Nainital in Special Sessions Trial No. 18 of 2010 and Special Sessions Trial No. 19 of 2010, whereby the learned Additional Sessions Judge/First Fast Track Court, Nainital convicted the appellants under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (from hereinafter referred to as the “NDPS Act”) and has sentenced both the appellants to undergo rigorous imprisonment for a period of ten years with a fine of Rs.1,00,000/- (Rupees One Lakh Only) each and one year simple imprisonment in case of default in payment of fine.

2. Brief facts of the case are that on 02.01.2010 at about 4:00 pm, a police party, consisting of Station Officer - Bheem Bhaskar Arya, Constable - Santosh Kumar, Constable - Jeevan Lal and Driver - Pooran Singh Dangwal were on a routine patrol duty. This police party apprehended two persons (the present appellants before this Court), who were carrying handbags on their shoulders. They were apprehended at the check post at Dhanachulli band. It is alleged that the appellants looked suspicious, and caught the attention of the police party due to their demeanour. Both were apprehended at a place which was barely 40 to 50 meters from the checking spot. On being questioned, they said that they are carrying “Charas” in their handbag. The first information report further states that once it was known to the police party that it is now a case under the Narcotics Act, both the appellants were informed that if they want to be searched before a Magistrate or a Gazetted Officer and if they say do, then the Magistrate or the Gazetted Officer can be called on the spot. On this information, both the appellants replied that since they have already been caught, they may be searched by the police party itself as they have full faith in them.

3. In any case, once the appellants agreed for their search, as is the case of the prosecution, the police party requested the nearby shopkeepers i.e. Sri Pal Charu Bhatt and Sri Puran Singh to be the witnesses of the search, but none of them extended their cooperation. Out of the two appellants, one is Iqbal, S/o late Shri Mohammad Gaffar, R/o Sarai Bibi, Thana - Shashni Gate, District- Aligarh, Uttar Pradesh who was carrying a black colour bag on his shoulder in which two plastic packets, one of 2Kg and other of 1.5 Kg “charas” were found. The other person told his name as Abdul Shakoor, S/o Late Mohammad Ismayal, R/o Junglegadi, Thana, Delhigate, District Aligarh, Uttar Pradesh and was carrying a blue colour bag on his left shoulder. When the bag was opened, it was, inter alia, found that he was having 2Kg “charas” like material. When they were asked whether they have a valid licence for carrying such material, the answer was in the negative. Weighing measures were procured from nearby shopkeepers and thereafter the contraband which was recovered from Iqbal was weighed as 2Kg and 50 grams from one packet and 1Kg 400 grams from other packet i.e. total 3Kg 450 grams and the contraband recovered from Abdul Shakoor was weighed as 1Kg 900 grams. The first information report further states that two samples were procured of 50 grams each which were kept in separate sealed packets. The first information report further states that the information that such a material has been procured in a search was informed to the superior authorities immediately thereafter. In usual course, thereafter, charge-sheet was filed against the appellants. Consequently, charges were framed against the appellants by the Trial Court on 02.07.2010.

4. The prosecution in order to prove its case examined as many as six witnesses.

5. Out of these witnesses, PW1- Bheem Bhaskar Arya, PW2-Santosh Kumar and PW4- Manohar Lal are the main witnesses and the other witnesses are formal witnesses, and all of them have supported the ca