IMPORTANT POINT
Non-compliance of section 50 vitiates the conviction.

JUDGMENT

Abhay Manohar Sapre, J.

1. This appeal is filed by the accused against the final judgment and order dated 26.06.2006 passed by the High Court of Uttaranchal at Nainital in Criminal Appeal No.368 of 2004 whereby the High Court confirmed the judgment and order dated 09.11.2004 passed by the Additional Sessions Judge, Fast Track Court II, Udham Singh Nagar in Special Sessions Trial No.20 of 2003 by which the appellant-accused was convicted for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and sentenced him to undergo rigorous imprisonment for 10 years and a fine of Rs.1,00,000/-.

2. In order to appreciate the issue involved in the appeal, few facts need to be mentioned hereinbelow.

3. In short, the case of the prosecution is as under:

4. On 23.11.2002, a secret information was received in P.S. Kichha from one unknown informant that one person is travelling in a roadways bus carrying with him some contraband articles. The secret informant also gave information that the person concerned would get down near the railway crossing from the Bus and would approach towards a place called “Chowki Pul Bhatta” along with contraband article.

5. The raiding party headed by SHO-Harish Mehra, who was on duty at P.S. Kichha along with the police officials on duty accordingly left for the place informed by the informant.

6. On reaching the informed place, the raiding party waited for sometime and thereafter spotted the person concerned, who was approaching towards the place informed to them. The raiding party intercepted the person concerned.

7. Thereafter, the accused was asked by the police personnel of raiding party as to whether he is in possession of contraband “Charas”. The accused admitted that he is in possession of “Charas”. On apprehending the accused, he was informed by the police personnel that he has a legal right to be searched in the presence of a Gazetted Officer or a Magistrate to which the accused replied that he has a faith on the raiding police party and consented to be searched by them.

8. The raiding police party accordingly obtained his consent in writing to be searched by the raiding police party. The raiding police party then searched the accused which resulted in seizure of “Charas” weighing around 2.5 K.G. in quantity from his body.

9. It is this incident, which gave rise to prosecution of the appellant (accused) for commission of the offence punishable under Section 20 of the NDPS Act in Special Sessions Trial No.20/2003. After investigation, the prosecution filed the charge sheet (Ex- 11) against the appellant and examined 5 witnesses to bring home the charge levelled against the appellant.

10. By order dated 09.11.2004, the Additional Sessions Judge/ Fast Track Court II, Udham Singh Nagar held that the prosecution was able to prove the case beyond reasonable doubt against the appellant and accordingly convicted him for the offences punishable under Section 20 of the NDPS Act and sentenced him to undergo rigorous imprisonment for 10 years and a fine of Rs.1,00,000/-.

11. The accused felt aggrieved and filed appeal in the High Court at Nainital. By impugned judgment, the High Court dismissed the appeal and upheld the order of Additional Sessions Judge, which has given rise to filing of the present appeal by the accused by way of special leave in this Court.

12. Heard Mr. J.C. Gupta, learned senior counsel for the appellant (accused) and Mr. Ashutosh Kumar Sharma, learned counsel for the respondent-State.

13. Learned counsel for the appellant (accused) while assailing the legality and correctness of the impugned judgment contended that both the Courts below erred in holding the appellant guilty of commission of the offence in question and thus erred in convicting him for the alleged offence under the NDPS Act.

14. Learned counsel contended that the prosecution has failed to ensure mandatory compliance of Section 50 of the NDPS Act