Mandatory compliance with procedural safeguards in narcotics investigations is essential to establish the legality of evidence and support prosecution claims.

Hon’ble Narayan Singh Dhanik, J.

Challenge in the present criminal appeal is to the judgment and order dated 17.4.2018 passed by the learned Special Sessions Judge, Uttarkashi in the Special Sessions Trial No. 20/2016 whereby the appellant has been convicted for the offence under Section 8 /20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, NDPS Act) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of rupees one lakh twenty five thousand.

As per the prosecution story, at about 2.55 AM on 1.4.2016, 1.5 Kg illegal Charas was recovered from the possession of the appellant. Consequently, the case was registered against the appellant and after the investigation, the police submitted the chargesheet. Thereafter the Trial Court framed the charge punishable under Section 20 of the NDPS Act against the accused appellant.

Prosecution examined seven witnesses to prove its case. PW1 S.I. Ajay Singh is the witness of recovery. He is also the arresting officer and information to the Circle Officer (PW2) was given from his mobile phone. PW2 is the Circle Officer Devi Datt Chausali before whom the search of the accused was conducted and the alleged recovery was made. PW3 is Head Constable Sunil Kumar who prepared the Chick Report. PW4 S.I. M.L. Jhakmola is the witness of recovery. PW5 Constable Raghuveer Singh had taken the sample of recovered contraband to the Forensic Science Laboratory, Dehradun. PW6 Vijendra Kumar was the Malkhana Moharrir on the relevant date. PW7 S.I. Deep Kumar is the investigating officer who after completing the investigation filed the chargesheet against the accused appellant.

The accused in his statement under Section 313 CrPC has stated that he has been falsely implicated in this case. After the trial the accused appellant was convicted and sentenced, as already stated hereinabove. Being aggrieved, the convict appellant has filed the present appeal.

Learned Counsel for the appellant contended that the prosecution has failed to prove its case against the appellant beyond reasonable doubt as the alleged recovery of contraband substance is doubtful, mandatory provisions of the NDPS Act has not been complied with in the present case and there are material contradictions in the statements of the prosecution witnesses and the conviction of the appellant is based on extremely thin evidence. All the witnesses examined by the prosecution are police personnel and no independent witness has been examined by the prosecution.

Learned Counsel for the appellant contended that the alleged recovery itself is doubtful. It has come in the recovery memo that the police party left for law and order duty taking along the weighing scale and weights. It is not the case of the prosecution that the police had prior information that somebody was carrying contraband material or that the recovery of the contraband material is very frequent in the area, then what was the occasion for the police party to carry the weighing scale and weights. Further, there is no independent witness of the alleged recovery. It dents the prosecution story.

Learned Counsel for the appellant argued that compliance of Section 50 of the NDPS Act has not been made in the present case as the accused was not made aware of his legal rights in unambiguous term. For the sake of convenience, of the NDPS Act is reproduced as under:

“50. Conditions under which search of Persons shall be conducted.——

(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magis