The judgment emphasizes the stringent provisions of the Narcotic Drugs and Psychotropic Substances Act designed to safeguard the accused from false implication, highlighting the non-compliance with necessary and mandatory provisions of the Act as fatal to the prosecution's case.

JUDGMENT

N.S. Dhanik, J. - This appeal is directed against the judgment and order dated 7.4.2007, passed by the Special Judge, Almora in Special Sessions Trial No. 16/2005, whereby the appellant has been held guilty for the offence under Section 8 read with Section 20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the Act') and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of rupees one lakh.

2. In brief, the prosecution case is that on 26.7.2005, SHO Ganga Singh along with Constable Subhash Chandra Pant, Ram Singh and driver Dan Singh departed from the police station for searching intoxicating substances and were on the way to village Bhatkot. When they reached near Laxmi Hotel, they found two persons going on the road towards Hanuman Mandir Block having bags on their heads. Thereafter the police patrolling party immediately apprehended after chasing them at about 14.50 hours on 26.7.2005. The appellant was informed of his right of being searched before a Gazetted Officer or a Magistrate, but he declined the offer. SHO Ganga Singh took his search in presence of Head Constable Kalyan Ram. The appellant was found carrying 20 kg ganja in a plastic bag, whereas the co-accused was found carrying 25 kg ganja in a bag. The contraband was seized. Two samples of 500 grams ganja each were prepared at the spot and remaining ganja was kept intact in the bags. Thereafter the accused persons were arrested and they along with the recovered contraband were brought to the police station, where the FIR was registered. After completing the investigation, the police submitted the chargesheet against the accused persons.

3. To prove its case, the prosecution examined SHO Ganga Singh as PW1, Sub Inspector Kalyan Ram as PW2 and the Investigation Officer S.O. Kunwar Singh Rawat as PW3.

4. Thereafter statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he has falsely been implicated in this case. In defence, accused appellant got examined Madan Singh as DW1.

5. After appreciating the evidence and after hearing learned Counsel for the parties, learned Special Judge convicted and sentenced the accused appellant, as stated hereinabove. (Here, it would be pertinent to mention that the co-accused was also convicted by the trial court in a separate trial (Special S.T. No. 15/2005) and the appeal preferred by the co-accused against the said conviction was allowed by this Court vide judgment and order dated 28.3.2008 and the co-accused was acquitted.)

6. Having heard learned Counsel for the parties and on perusal of the evidence on record, I find that there are many flaws in the prosecution evidence and the recovery itself is doubtful and the manner in which the entire proceedings have been conducted by the prosecution creates serious doubt on the prosecution story.

7. Pw1 SHO Ganga Singh, who was leading the police party on the date of alleged incident, has reiterated the averments made in the recovery memo. In his examination-in-chief, he has deposed that on 26.7.2005 he along with Constable Ram Singh and Subhas Pant departed from the PS Dwarahat at 12.20 PM vide G.D. Rapat No. 14 on duty of raiding and searching the narcotic substances. In the way, this witness took along HCP Kalyan Ram and went towards the place of occurrence where the recovery of the alleged contraband was made from the accused appellant in the manner as stated in the recovery memo. In the cross-examination, this witness has admitted that copy of the G.D. vide which he departed from the police station on the date of alleged incident is not on record. He further admitted that the place of occurrence is very busy place but he could not procure any independent witness and this thing has not even been mentioned in the recovery memo. This witness has also admitted that he neither weighed the recovered co