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2017 (12) TMI 630 - HC - Indian LawsOffence under NDPS Act - compliance of the provisions of Section 50 of NDPS Act - case of recovery of 05kg and 150gm heroin/smack or even of little more than 1 kg heroin - guilty of charge under Section 21(ii)(C) of NDPS Act - Held that:- In view of above position of law, in the case at hand from record it is absolutely clear as recorded in the recovery memo itself and also narrated by PW-1 and PW-5 that accused were apprised only about their rights to be searched in presence of a Gazetted Officer and not in presence of a Magistrate. Hence, on facts it is found that the prosecution has failed to make full compliance of the provisions of Section 50 of NDPS Act in this case which will adversely affect the prosecution's case and would vitiate the conviction. It is evident from the above discussion that the prosecution has failed to make full compliance of Section 50 of NDPS Act. There is infirmity found in regard to the seal used in sealing the sample contraband which was sent to the F.S.L. The procedure which is prescribed for collecting the sample by the Narcotics Control Bureau, New Delhi has not even remotely been followed. The five packets which were allegedly recovered of heroin/smack each weighing little more than 01kg, were not weighed separately nor was it established as to from which particular packet the sample was taken, therefore, the recovery of the said quantity would be doubtful. The cumulative effects of all these infirmities found by this Court appears to have escaped attention of the lower court or it may be said that the lower court did not make proper appreciation of the evidence on record. Thus, the prosecution has failed to establish its case of recovery of 05kg and 150gm heroin/smack or even of little more than 1 kg heroin as held by court below from the accused-appellants beyond shadow of doubt. Both the appeals are allowed. The judgment and order under challenge of the court below is set aside and the accused-appellants are held not guilty of charge under Section 21(ii)(C) of NDPS Act. They be released in this case forthwith, if not detained in any other case.
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