1050 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision: 08.05.2025 PAWAN KUMAR ...APPELLANT Versus UT OF CHANDIGARH ...RESPONDENT CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Imran, Advocate as Amicus Curiae for the appellant.

Mr. Manish Bansal, PP U.T. Chandigarh and Ms. Diksha Sharma, Advocate for UT Chandigarh.

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Harpreet Singh Brar, J. (Oral)

1. Present appeal has been preferred by the appellant against the judgment of conviction and order on quantum of sentence dated 06.08.2008 passed by learned Judge, Special Court, Chandigarh vide which the appellant has been convicted and sentenced as mentioned below:

2. Brief facts of the case are that on 23.02.2003, SI Harinder Singh Sekhon and other police officials had apprehended the accused-appellant on the basis of suspicion in the area of Rajiv Colony, Sector 38-A, Chandigarh and his name and address was verified. On the basis of suspicion, personal search of the appellant was conducted and 9 grams of smack was recovered, out of which, two samples of 2 grams each were separated. All the parcels were sealed. FIR no. 96 dated 23.02.2003 was registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as ‘NDPS Act’).

CONTENTIONS

3. Learned Amicus Curiae for the appellant inter alia contends that the whole case of prosecution hinges upon the testimonies of official witnesses and no independent witness was joined at the time of recovery of alleged contraband, however, the place of recovery is a thoroughfare. Further, there is non-compliance of mandatory provisions of Section 50 of NDPS Act, as the appellant was apprehended on the basis of suspicion and on being searched the alleged contraband was found by the police. The Police was under legal obligation to serve notice under Section 50 of NDPS Act before carrying out the personal search of the appellant. As per NDPS Act no relaxation is provided regarding issuance of notice under section 50 of the Act in the case of chance recovery. That another flaw in the prosecution case, as per the standing instruction of NCB it is required that the CFSL form be prepared at the spot, which was not ever prepared at the spot or was deposited with MHC or sent to FSL along with the sample. Hence, there is non-compliance of Section 52-A of NDPS Act also. Learned Amicus Curiae further submits that although the petitioner is involved in other cases but none of the cases falls within the ambit of NDPS Act.

4. Per contra, learned State counsel argues that learned trial Court has passed a well-reasoned judgment based on correct appreciation of evidence available on record and as such, no interference by this Court is warranted. Additionally, there is nothing on record to suggest that the appellant may have been falsely implicated.

OBSERVATIONS AND ANALYSIS

5. Having heard learned counsel for the parties and after perusing the record with their able assistance, it transpires that no independent witness was joined in the investigation and the entire prosecution case is totally based upon the testimony of official witnesses. Infact, neither any effort was made to asso- ciate any independent witness nor any explanation is forthcoming for not doing so. A two Judge Bench of the Hon'ble Supreme Court in Krishan Chand Vs. State of H.P., AIR 2017 SC 3751 has laid down the ratio that the failure of the Investigating Officer to associate an independent witness at the time of recovery creates a dent in the case of the prosecution. The Hon'ble Supreme Court in Gorakh Nath Prasad Vs. State of Bihar, 2018(1) R.C.R. (Criminal) 108 has ac- quitted the accused while holding that the case of the prosecution cannot be said to be proved when it is entirely based upon the statements of the official witness when no independent witness has been joined in the investigation.

6. Learned amicus curie has forcefully argued that provisions of the Section 50 of NDPS Act were not complied with, as the appe