Subeg Singh vs State of Haryana

T.H.B. Chalapathi, J.

This appeal is directed against the conviction and sentence imposed by the learned Sessions Judge Hisar in Sessions Case No. 50 of 1988 for the offence u/s 18 of the NDPS Act.

According to the prosecution on 14.5.88 when the police party was at the railway station the accused got down from the train and on suspicion he was searched and opium weighing 500 gms was recovered from him. Samples were taken and recovery memo was prepared and FIR was registered and after completion of the investigation challan was presented against the accused. On the basis of the material placed before him the case was committed to Sessions. The learned Sessions Judge framed charge against the accused u/s 18 of the NDPS Act. In order to prove the guilt of the accused the prosecution examined 3 witnesses and marked certain documents. On a consideration of the evidence on record the learned Additional Sessions Judge convicted the accused for the offence U/s 18 of the NDPS Act and sentenced him to undergo RI for 10 years and pay a fine of Rs. 1 lac. Hence this appeal by the accused through jail.

It is very unfortunate that though the accused was convicted for a period of 10 years in the year 1988 the appeal could not be heard by this Court even after a lapse of more than a decade. The appeal is therefore liable to be allowed on the short ground of violation of the provisions of section 50 of the NDPS Act. PW1 is the person who searched the accused. According to him before search he served a notice on the accused which is marked as Exhibit PA. Exhibit PB is the recovery memo. It is pertinent to note that recovery memo Exhibit PB which was said to have been prepared at the time when the notice under Exhibit PA was given by Mohinder Lal and Mangal Singh whereas Exhibit PA does not contain any attestation. It is the case of the accused that no notice as contained in Exhibit PA was given to him and it was prepared at the police station. If really Exhibit PA was served on the accused the same would have also been attested by Mohinder Lal and Mangal Singh. Further PW1 himself admitted that though he has recorded Exhibit PA, the endorsement on Exhibit PA which are marked as Exhibits D and D1 were not in his writing. This creates any amount of suspicion on the genuineness of Exhibit PA. I am, therefore, not able to place any reliance on Exhibit PA. If once Exhibit PA is excluded from consideration then there is noncompliance of the provisions of section 50 of the NDPS Act. When there is noncompliance of the mandatory provisions of section 50 of the NDPS Act the accused is entitled to be acquitted as held by the Apex Court in State of Punjab v. Balbir Singh, 1994(1) RCR(Crl.) 737 : 1994(2) JT SC 108 and State of Punjab v. Baldev Singh, 1999(3) RCR(Crl) 533.

I accordingly set aside the conviction and sentence imposed by the learned ASJ Sirsa on the accusedappellant. If the accusedappellant is still in jail he is directed to be released forthwith if not required to be detained in any other case. In case he is released on bail his bail bonds shall stand cancelled.