Non-compliance with mandatory safeguards under Section 50 of the NDPS Act and significant contradictions in witness testimonies regarding the seizure and handling of contraband entitle the accused to acquittal, which an appellate court should be slow to disturb.

Order

1. By way of filing the instant appeal under Section 378 Cr.P.C., the appellant-State has assailed the judgment dated 20.08.1996 passed by the learned Special Judge, N.D.P.S. Act Cases, Bhilwara in Sessions Case No. 50/94, whereby the accused-respondent has been acquitted of the charge under Section 8/18 of the N.D.P.S. Act, 1985.

2. The prosecution story in nutshell would be that on 26.07.1993, SHO Subhash Nagar with his team was on patrolling and upon seeing a person in suspicious circumstance, he was confined. He was helding an attachi in his hand. Upon being searched, 1 Kg opium was found there in. After that, the accused was apprehended and contraband came to be seized, a parchakayami report was prepared and FIR came to be chalked and after usual investigation a chart- sheet came to be submitted against accused respondent under Sections 8/18 of NDPS Act. After taking cognizance of offence and framing of charges under Section 8/18 of NDPS Act, the learned trial court proceeded to commence the trial. As many as 10 witnesses were produced by the prosecution and reliance has been placed upon 9 documents for substantiation of charge. The accused was confronted with the prosecution evidence brought on record under Section 313 Cr.P.C. where he claimed to be innocent and raised a plea of false implication. After hearing learned counsel for the parties learned trial court acquitted the accused respondent from the charges. Hence, this appeal.

3. I have heard learned counsel for the State. No one appeared on behalf of the accused respondent, thus this Court appointed learned counsel Ms. Manisha Phophaliya as amicus curiae to represent the accused respondent which she did aptly and duly. She appointed as Amicus Curiae under the free legal aid scheme of Rajasthan State Legal Services Authority. The remuneration to learned counsel shall be paid by RSLSA as the per the rules.

4. The some and substance of the premise on which learned trial court acquitted the accused respondent has been the defective compliance of section 50 of the NDPS Act. Since having stringent provision of punishment, often NDPS Act is called as a draconian law and that is why to prevent innocent persons from being prosecuted, the legislature in its wisdom prudently made provision for safeguarding the people. Sections 42 and 50 of NDPS Act are among those provisions for which now through a plethora of judicial pronouncements it has been settled that compliance of both the provisions is mandatory and non-compliance would be fatal for the prosecution.

5. Here in this case, learned trial court acquitted the accused respondent on the ground of defective and faulty compliance of Section 50 of NDPS Act and serious in-congruence and discrepancy in between statement of PW-2 Babu Khan, PW-4 Jagdish Chandra and PW-8 DYSP Azad. A serious dichotomy and contradiction has also been observed by this Court in statement of PW-4 and PW-2. PW-4 is a policeman and why his deposition made on oath before court should be discarded or disbelieved is a question to ponder for which learned PP fails to satisfy this Court.

6. If the statement of PW-4 is accepted as it is, whatever he has replied in his cross-examination, then it would come to fore that PW-8 did not reach to the spot rather he appended his signature on the papers on the next date in his office. The papers are those which have been portrayed to be prepared at the spot. Learned trial court has very prudently discussed the evidence of these witnesses in Para-15 (A to H) of the impugned judgment and after going through which this Court is of the firm opinion that indeed no error has been commited by learned trial court. The eviden