Non-compliance with S.50 of the NDPS Act renders conviction invalid.

1. This appeal arises out of the judgment dated 5th May, 1994 delivered by the learned Additional Sessions Judge in Sessions Case No. 24/94. By this judgment the appellant has been convicted under S.21 of the NDPS Act and has been sentenced to undergo rigorous imprisonment of 10 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine, the appellant has been further directed to undergo the rigorous imprisonment of one year.

2. The case of the prosecution against the appellant is that on 29th September, 1993 the Sub-Inspector Dalip Singh of the Anti Auto Theft Squad received a secret information that a foreigner carrying heroin would come at G. T. Road in one white gypsy vehicle carrying heroin. The information was reduced into writing and was given to the A.C.P. (Head Quarter) and in the meantime raiding party was organised by joining police officials and thereafter the raiding party reached at the spot. One public person was joined in the raiding party by the prosecution. In the meanwhile the A.C.P. (HQ) also reached the spot. The road was blocked by putting drums on the road and while gypsy No. DL - 3C B 5521 was seen coming from I.S.B.T. side and it was signaled to stop and at about 9.15 p.m. driver of the gypsy stopped the vehicle, and on search from right side socks of the accused, one packet containing 35 grams of heroin was recovered. After completing necessary formalities, the accused was arrested and challaned.

3. The learned Metropolitan Magistrate committed the case for trial to the Court of Session. The charge was framed by the learned Additional Sessions Judge on 5th May, 1994 under S.21 of the N.D.P.S. Act to which the accused pleaded not guilty and claimed trial. The prosecution examined nine witnesses in support of its case. On the basis of the testimony of the prosecution witnesses, the trial Court arrived at the conclusion that the appellant is guilty of the offence under S.21 of the N.D.P.S. Act and consequently convicted and sentenced him.

4. The appellant aggrieved by the judgment of the learned Additional Sessions Judge has filed appeal before this Court. The appellant challenged the judgment on various grounds. The threshold submission of the learned counsel appearing for the appellant is that there is no compliance of S.50 of the N.D.P.S. Act which is mandatory in nature. Therefore, the conviction of the appellant is bad on this count and the judgment of the trial Court needs to be set aside only on this short ground alone.

5. The learned counsel also submitted that there is no compliance of S.53, S.55 and S.57 of the NDPS Act and conviction of the appellant is liable to be set aside on this ground also on that account also.

6. The learned counsel also submitted that the C.F.S.L. form was not deposited in Malkhana. The learned counsel has cited number of judgments in which it is laid down that non - deposit of C.F.S.L. form in the malkhana is vital to the prosecution case and conviction cannot be sustained in these cases where there is non compliance of this vital requirements.

7. The learned counsel for the appellant has also argued that there is no compliance of S.42 and S.43 of the NDPS Act and conviction ought to be set aside on this account also.

8. The counsel for the appellant also submitted that seal was admittedly retained by the S.H.O. and not handed over to the independent witness and because of this lacuna in the prosecution version, the appellant is entitled to be acquitted. The learned counsel for the appellant also submitted that there are material discrepancies in the statements of the prosecution version and on the basis of such evidence no convict