TMI Blog2015 (4) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... ty years and fine of two lakh rupees and minimum sentence of imprisonment of ten years and a fine of one lakh rupee. Since in the cases of NDPS Act the punishment is severe, therefore strict proof is required for proving the search, seizure and the recovery - onviction of the appellant and the sentence imposed on him is set aside - Decided in favour of assessee. - Criminal Appeal No.682 of 2015 (Arising out of S.L.P. (Crl.) No.458 of 2013) - - - Dated:- 21-4-2015 - T. S. Thakur And R. Banumathi,JJ. For the Appellant : Mr. Chanchal Kumar Ganguli,Adv. Ms. Narmada,Adv. For the Respondent : Mr. Vishwa Pal Singh, Adv. ORDER Delay condoned. Leave granted. 2. This appeal arises out of the judgment dated 10.12.2007 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No.777-SB of 1996, whereby the High Court affirmed the conviction of the appellant under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act') and also the sentence of imprisonment of ten years along with a fine of ₹ 1 ,00,000 /- imposed on the appellant. 3. Briefly stated case of prosecution is that on 27.07.1994, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that since both the independent witnesses did not support the prosecution story, the prosecution has not proved its case beyond reasonable doubt and this material aspect has been ignored by the courts below. Appellant also alleges that non-compliance of mandatory provisions under Sections 50 and 52 of the NDPS Act vitiates the alleged recovery of contraband. 7. Per contra, learned counsel for the respondent-State has supported the impugned judgment and submitted that the provisions of Section 50 of the NDPS Act has been duly complied with and the concurrent findings of the courts below recording the verdict of conviction cannot be interfered with. 8. During the trial, PW1-Manjeet Singh was declared hostile by the prosecution and another independent witness Gamdur Singh was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s if independent witnesses were not available. Independent witnesses PW1 and another independent witness examined as DW2 has spoken in one voice that the accused person was taken from his residence. In such circumstances, in our view, the High Court ought not to have overlooked the testimony of independent witnesses, especially when it casts doubt on the recovery and the genuineness of the prosecution version. 11. It is to be pointed out that the prosecution misdirected itself by unnecessarily focusing on Section 50 of the NDPS Act, when the fact is that the recovery 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 appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50, and particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial. 15. Compliance with Section 50 of the NDPS Act will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which the accused may be carrying ought to be searched. In State of H.P. v. Pawan Kumar, (2005) 4 SCC 350, this Court in Para (11) has held as under: 11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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