Conviction under NDPS Act set aside for non-compliance with Section 50, lack of independent witnesses despite availability, and chain of custody infirmities, entitling accused to benefit of doubt due to prosecution's failure to prove case strictly.

JUDGMENT :

Ashish Naithani, J.

This Criminal Appeal has been preferred under Section 374 of the Code of Criminal Procedure against the judgment and order dated 27.06.2007 passed by the learned Sessions Judge, Almora in Special Sessions Trial No. 2 of 2004, whereby the Appellant has been convicted under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and has been sentenced to undergo rigorous imprisonment for a period of three years along with a fine of Rs. 10,000/-, with default stipulation.

2. This Court has heard Mr. Ramji Srivastava, learned counsel for the Appellant and Mr. Bhaskar Chandra Joshi, learned AGA for the State, and has perused the entire lower court record.

3. The case, in brief, is that, a police party allegedly apprehended the Appellant and, upon search, is stated to have recovered from his possession a bag containing ganja. It is the case of the state that the recovered contraband was weighed and its quantity was found to be 20 kilograms.

4. On the basis of the aforesaid alleged recovery, a First Information Report was lodged against the Appellant and investigation commenced. After completion of investigation, a charge-sheet was submitted against the Appellant for the offence punishable under Section 8/20 of the NDPS Act.

5. The Appellant was put to trial before the Court of the Special Judge/Sessions Judge, Almora in Special Sessions Trial No. 2 of 2004.

6. The learned trial court, after appreciating the evidence on record, convicted the Appellant under Section 8/20 of the NDPS Act and sentenced him in the manner indicated above.

7. Aggrieved by the said judgment and order of conviction and sentence, the present criminal appeal has been filed.

8. The appeal is of the year 2007 and the order-sheet reflects that at different stages the Appellant remained absent, non-bailable warrants were issued and bonds were forfeited. Ultimately, in order to ensure that the appeal is decided on merits, this Court appointed learned Amicus Curiae to assist the Court, and the appeal has now been finally heard.

9. Learned counsel appearing for the Appellant assailed the impugned judgment and order of conviction on multiple grounds.

10. It was submitted that the alleged search and recovery is vitiated due to non-compliance of the mandatory provisions of Section 50 of the NDPS Act, inasmuch as the Appellant was not informed of his legal right to be searched before a Gazetted Officer or a Magistrate. It was further submitted that although, as per the state itself, public persons were available at or near the place of alleged recovery, no independent public witness was examined by the state, and the entire case rests only upon the testimony of police personnel. It was also contended by learned counsel for the Appellant that the State has failed to establish the case beyond reasonable doubt in respect of the weighment, sampling, sealing and safe custody of the alleged contraband, and therefore, the possibility of tampering cannot be ruled out.

11. Learned counsel further submits that the trial court itself has recorded observations creating doubt about the State version, yet has proceeded to convict the Appellant, which, according to learned counsel, is legally unsustainable.

12. It is argued that the burden placed upon the State in cases under the NDPS Act is very strict, and