IMPORTANT POINT
Criminal justice delivery system cannot be allowed to veer exclusively to benefit of offender making it unidirectional exercise.

JUDGMENT

Navin Sinha, J.

The appellant assails the order reversing his acquittal and convicting him under Section 20(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act"), sentencing him for 20 years, along with fine of Rs. 2 lacs, with a default stipulation.

2. The appellant is stated to have been apprehended on 31.03.1995 carrying "charas" on his scooter, in two gunny bags, with varying quantities. The Trial Court acquitted the appellant on grounds of non-compliance with Section 100(4) of the Code of Criminal Procedure, with regard to independent witnesses. Further, there had been non-compliance with Sections 50, 52 and 57 of the NDPS Act, and that the seal prepared at the time of seizure and handed over to PW-5, Naresh Kumar had not been produced in the court.

3. The High Court, reversing the acquittal held that the seals prepared at the time of seizure, and also at the time of deposit in the Malkhana had been produced and marked as Exhibits PH and PK. The chemical examiners report confirmed the seized material as "charas". The seizure of the contraband being from gunny bags, Section 50 of the NDPS Act had no application. Merely because the two independent witnesses were not from the same locality, would not ipso facto amount to violation of Section 100(4), Cr.P.C.

4. Shri Dhruv Pall, learned counsel for the appellant submitted that the appellant had been falsely implicated because he had lodged a complaint against the C.I.D., for improper investigation in the case relating to his father's death. PW-5, Naresh Kumar, the independent witness, had turned hostile and did not support the prosecution case with regard to search and seizure. The second independent witness Jeevan Kumar, was withheld by the prosecution without any explanation. In the facts of the case, the absence of independent witnesses from the same locality as required by Section 100(4) Cr.P.C. assumes importance. PW-10 Sub- Inspector Prem Singh, being the informant himself, was also the Investigating Officer, and which alone vitiates the conviction irrespective of all other issues. Strong reliance was placed on a recent decision of this Court in Mohan Lal vs. State of Punjab, AIR 2018 SC 3853.

5. Shri Abhinav Mukerji, learned counsel appearing for the State, opposing the appeal submitted that the order of the High Court being well reasoned and considered merits no interference. The appellant has a previous history of convictions under the NDPS Act. The ground that PW-10 being the informant could not have been the investigating officer also, had not been raised at any stage. The order of conviction therefore may not be tested on a ground to which the High Court had no occasion to apply its mind. It has also not been pleaded in the appeal.

6. We have considered the respective submissions. PW-10 is stated to have received secret information at 2.45 P.M. on 31.03.1995. He immediately reduced it into writing and sent the same to PW-8, Shri Jaipal Singh, Dy.S.P., C.I.D., Shimla. At 3.05 P.M. PW-7, Head Constable Surender Kumar stopped PW-5, Naresh Kumar and another independent witness, Jeevan Kumar travelling together, whereafter the appellant was apprehended at 3.30 P.M. with two Gunny Bags on his Scooter which contained varying quantities of 'charas'. PW-8, Shri Jaipal Singh, Dy.S.P., C.I.D., Shimla who had arrived by then gave notice to the appellant and obtained his consent for carrying out the search. Two samples of 25 gms. each were taken from the two Gunny Bags and sealed with the seal 'S', and given to PW-5. PW-2, Jaswinder Singh the MalkhanaHead Constable resealed it with the seal T The conclusion of the Trial Court that the seal had not been produced in the Court is therefore perverse in view of the two specimen seal impressions having been marked as Exhibits PH and PK. It is not the case of the appellant that the seals were found tampered in any manner.

7. Section 50 of NDPS Act patently has no application si