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2017 (12) TMI 173 - HC - Indian LawsConviction and order of sentence under Section 22 of ‘NDPS Act’ - Held that:- The trial Court has completely ignored the defence evidence led by the appellant and has failed to evaluate the prosecution evidence in the light of defence set up by the appellant. The appellant has set up a defence that a complaint was lodged with the SSP, Mansa that one Sanjiv Kumar, in collusion with SHO, Police Station, Jhunir, is involved in the selling of intoxicants. The appellant has proved on record the complaint Ex.DW4/A, the inquiry report conducted on the same by DSP as Ex.DW4/D and final report Ex.DW4/E. Both the defence witnesses DW1 and DW2, Sarpanch and Panch have stated that PW3 Inspector Dalbir Singh, SHO, PS, Jhunir had come to the village 5-6 days before registration of the FIR and had threatened the appellant, for the reason that the appellant has filed the said complaint against him and immediately thereafter, the appellant was implicated in the present FIR. In the light of this defence set up by the appellant, the evidence of the prosecution, if examined minutely, proves the conduct of PW3 Inspector Dalbir Singh SHO that he has not acted and followed procedure in accordance with law. The statement of PW3 Inspector Dalbir Singh, on careful scrutiny, clearly make out a case that provisions of Section 50 of NDPS Act were not at all followed. This witness has clearly admitted that he has not informed the accused regarding his right under Section 50 of NDPS Act. The prosecution has examined only three witnesses, out of which PW1 HC Gurdeep Singh is a formal witness, who has deposited the sample parcel to FSL. However, there is no explanation given by him that why the sample was not deposited on the same day, as this witness has stated that after obtaining the sample on 16.06.2010, he stayed in police station, Mansa on 16.06.2010 and deposited the same with FSL on 17.06.2010. Even the statement of Investigating Officer PW2 ASI Gurdip Singh do not inspire much confidence. The trial Court, while convicting the appellant, has wrongly held that the provisions of Section 50 of NDPS Act were complied with, as the Investigating Officer himself was the SHO of police station and it has come in the evidence that he has kept the sealed parcel with him and has not deposited the same in judicial malkhana. It has also come in the evidence that he has sent the sealed parcels after a delay of about 11 days and therefore, the finding recorded by the trial Court that there is a compliance of Section 50 of NDPS Act, is erroneous. The trial Court has further ignored FIR Ex.DX dated 24.04.2013, vide which aforesaid Sanjiv Kumar was arrested in connection with an FIR under the NDPS Act. For the reasons stated above, this appeal is allowed. The impugned judgment of conviction and order of sentence of even date i.e. 05.09.2013 are set aside. The appellant-accused is acquitted of the charge under Section 22 of NDPS Act and he shall be released forthwith, if he is not involved in any other case.
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