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TMI Blog2015 (4) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;the NDPS Act') and also the sentence of imprisonment of ten years along with a fine of Rs. 1 ,00,000 /- imposed on the appellant. 3. Briefly stated case of prosecution is that on 27.07.1994, the police officials during patrolling, when talking with one Manjeet Singh- PW1 and Gamdur Singh-DW2, saw the suspicious 'fitter- rehra' (a vehicle) driven by the appellant. Police intercepted the vehicle and questioned the appellant about his whereabouts, and found some dubious bags lying in the vehicle. Before searching the bags, police intimated to the appellant that instead of being searched by police whether he wishes to be searched by a Gazetted Officer or a Magistrate and the appellant declined to be searched by them and a conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the High Court. The High Court held that the evidence of PW6-Inspector Raghbir Singh and PW2-H.C.Suraj Mal is unimpeachable and vide impugned judgment dated 10.12.2007 confirmed the conviction of the appellant and dismissed the appeal. 6. Challenging his conviction, the appellant has approached this Court with a contention that he has been falsely implicated in the case and that he was brought from his house and was put behind the bars. Learned counsel for the appellant contended that the case of the prosecution is based solely on the testimony of official witnesses PW2 and PW6 and much weightage ought not to have been attached to their testimony, especially by discarding the testimony of both the defence witnesses. It was submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of PW1 and DW2 observing that the independent witnesses hail from the same village to which accused belongs and the accused might have approached the witnesses through respectables of the village to resile from his statement. That apart, the High Court also observed that both the independent witnesses did not explain the circumstances or compulsions in which they had to sign the blank papers. The reasoning of the High Court is based more on assumptions than on acceptable basis. When PW1 and DW2 have asserted that they have signed only the blank papers, the courts below ought to have considered them in proper perspective. 10. For recording the conviction, the Sessions Court as well as the High Court mainly relied on the testimony of officia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overy has been made not from the person of the appellant but from the fitter- rehra which was allegedly driven by the appellant and, thus, Section 50 of the NDPS Act had no application at all. The prosecution ought to have endeavoured to prove whether the appellant had some nexus with the seized fitter-rehra. Though the police has seized the fitter- rehra (Ext. PB), the prosecution has not adduced any evidence either by examining the neighbours or others to bring home the point that the appellant was the owner or possessor of the vehicle. PW6 admitted in his cross-examination that signature or thumb impression of the appellant was not obtained on the recovery memo (Ext. PB). In our opinion, courts below erred in attributing to the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing else. 14. A Constitution Bench of this Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172, while dealing with the scope of Section 50 of the NDPS Act, had emphasized upon the aspect of availability of right of an accused to have 'personal search' conducted before a Gazetted Officer or a Magistrate and held as under: "32...The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires, is sacrosanct and indefeasible- it cannot be disregarded by the prosecution except at its own peril. 33. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act." Same view was reiterated in Ajmer Singh v. State of Haryana, (2010) 3 SCC 746. 16. In the present case, since the vehicle was searched and the contraband was seized from the vehicle, compliance with Section 50 of the NDPS Act was not required. In the absence of independent evidence connecting the appellant with the fitter-rehra, mere compliance with Section 50 of the NDPS Act by itself would not be sufficient to establish the guilt of the appellant. It is a well-settled principle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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