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Himachal Pradesh High Court · body

2016 DIGILAW 629 (HP)

Raj Kumar v. State of H. P.

2016-05-02

CHANDER BHUSAN BAROWALIA, RAJIV SHARMA

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JUDGMENT : Chander Bhusan Barowalia, J. Since the common questions of law and facts are involved in these two appeals, as they are arising out of the same judgment, so, they are taken up together for hearing and are being disposed of by a common judgment. 2. Criminal Appeal No.2 of 2013 is maintained by the accused Raj Kumar, against his conviction and sentence in Sessions Trial No.09 of 2011 and Criminal Appeal No.38 of 2013 is maintained by the State of Himachal Pradesh, against the same judgment. Both these appeals are instituted against the judgment dated 06.10.2012/09.10.2012, rendered by the learned Special Judge, Kullu, H.P. in Sessions Trial No.09 of 2011 and 69 of 2012, respectively wherein the accused Raj Kumar, appellant in Appeal No.02 of 2013, and respondent in Appeal No.38 of 2013, (hereinafter called the ‘appellant’), was charged with and tried for the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985, (hereinafter to be called as the ‘Act’). 3. The learned trial Court has committed and sentenced the appellant with rigorous imprisonment for a period of six years and to pay a fine of Rs.60,000/-. 4. The case of the prosecution in nut-shell is that on 20.12.2010, at 7.00 PM, PW-7 PSI Anil Kumar (Investigating Officer) alongwith HC Parvinder Kumar, C. Amar Singh and HHC Chaman Lal was on patrolling duty towards Jia side. They heard the noise of a person of cuffing at place half kilometer from Talogi. With the help of search light, accused was found coming from Jia side. On seeing the police, he tried to flee away. Accused was nabbed by the police at a distance of 20 feet. PW-7 Anil Kumar inquired the name and address of the accused and he disclosed his name, as Raj Kumar, resident of Sarsari, Tehsil and District Kullu. The place was desolate. There was no residential houses, shops on that place and the Investigating Officer asked the accused whether he wants to give his search before Magistrate or Gazetted Officer or to the police and the accused consented to be searched by the police present on the spot. The memo Ext. PW1/A was prepared. 5. Thereafter, the Investigating Officer gave his personal search to the accused in presence of HHC Chaman Lal and in the presence of Parvinder signed that memo as attesting witnesses. The memo Ext. PW1/A was prepared. 5. Thereafter, the Investigating Officer gave his personal search to the accused in presence of HHC Chaman Lal and in the presence of Parvinder signed that memo as attesting witnesses. The Investigating Officer had also taken the personal search of the accused, but nothing was recovered from his personal search. The bag of the accused was searched, which he was carrying in his hand. In the bag of the accused black coloured substance wrapped in khaki tape in the shape of sticks was found. On smelling and burning, the black substance was found to be Charas. On weighing, its weight was found 2kg. The recovered charas along with polythene envelope, maroon coloured cloth and polythene bag was sealed in a parcel and, thereafter, the parcel was sealed with five seals of impression ‘T’. The Investigating Officer took samples of seal on separate piece of cloth. The Investigating Officer also filled the NCB form in triplicate and the seal after use was handed-over to HC Parvinder for safe custody. The parcel was taken into possession vide memo Ex.PW1/D, which was also signed by HHC Chaman Lal and Parvinder as attesting witness. The accused also put his signatures on the memo. Copy of recovery memo was supplied to accused free of cost. 6. Thereafter, the Investigating Officer prepared rukka Ex. PW7/A and handed over the same to HHC Chaman Lal with the direction to deliver the same in the police station. On the basis of rukka, FIR Ex. PW6/A was registered by SI Om Chand and case file was again handed-over to HHC Chaman Lal with direction to take the same to the spot, which he had handed-over to the Investigating Officer. The Investigating Officer further recorded the statements of the witnesses and prepared the spot map, which is Ex. PW7/B. The accused was arrested vide memo. Ex.PW1/E. The Investigating Officer handed over the case property alongwith NCB form in triplicate Ex. PW4/C to Officiating SHO Om Chand for resealing. Officiating SHO Om Chand, PW-6 had resealed the parcel with seal ‘A’ and filled column Nos. 9 to 11 of NCB form and obtained sample seal and, thereafter, deposited the case property, containing one bag of 2 kg Charas along with samples seals ‘T’ and ‘A’, copy of FIR, NCB Form and seizure memo. with MHC Maya, who made necessary entry in the relevant register. 9 to 11 of NCB form and obtained sample seal and, thereafter, deposited the case property, containing one bag of 2 kg Charas along with samples seals ‘T’ and ‘A’, copy of FIR, NCB Form and seizure memo. with MHC Maya, who made necessary entry in the relevant register. She also filled column No.12 of NCB form and sent the case property and relevant documents to F.S.L., Junga vide RC No.290 of 10 Ex.PW4/B through HHC Tek Chand, PW-5, who deposited the same in the laboratory in safe condition and obtained receipt and handed over the receipt and RC to MHC of the police station on his return. Investigation Officer had also prepared the special report Ex.PW2/A and handed over to Dy. S.P., who after making his endorsement on the special report further handed over the same to his Reader PW-2 HC Nirat Singh, who entered the special report in his register at Sr. No.102. On receipt of repot of FSL Ex. PX, file was handed-over to the SHO for the preparation of the challan and the challan was put in the Court. 7. In order to prove its case, the prosecution examined seven witnesses apart from adducing documentary evidence in support of it’s case. The statements of the accused was recorded under Section 313 Cr.P.C. The accused denied the case of the prosecution in its entirety and stated that he is innocent and has been falsely implicated in this case. The learned trial Court convicted and sentenced the accused with rigorous imprisonment of six years and a fine of Rs. 60,000/- In default of payment of fine, the accused has been further ordered to undergo simple imprisonment for a period of six months. 8. Shri Bhupinder Ahuja, learned counsel appearing for the accused/appellant has argued that the prosecution has failed to prove its case against the appellant. Shri P.M. Negi, learned Deputy Advocate General has supported the conviction and sentence of the appellant and contended that the prosecution has proved its case beyond reasonable doubt. Shri P.M. Negi, learned Deputy Advocate General has further argued that the Court below has committed illegality in taking of substance of narcotic as 635 gms, which is in fact 2kg. 9. We have heard the learned counsel for the parties and have gone through the record of the case. 10. Shri P.M. Negi, learned Deputy Advocate General has further argued that the Court below has committed illegality in taking of substance of narcotic as 635 gms, which is in fact 2kg. 9. We have heard the learned counsel for the parties and have gone through the record of the case. 10. PW-1 HHC Chaman Lal has deposed that on 2012.2010, at about 7.00 P.M., he alongwith HC Parminder Kumar and C. Amar Singh, were on patrolling duty towards Jia side. At about 7.00 P.M. they heard the noise of a person of cuffing at place half Km. from Talogi. With the help of search light, one person was noticed coming from Jia side. On seeing the police, that person tried to run away. He was nabbed by the police officials at a distance of 20 feet. 11. On inquiry, the accused disclosed his name, as Raj Kumar, resident of village Sarsari, Tehsil and District Kullu. The place was secluded. There was no residential houses nor shop. Option was given to the accused by the police, whether he wants to be searched before Magistrate or Gazetted Officer or before the police. When the accused gave his consent to be searched by the police vide memo. Ext. PW1/A, the same was reduced in writing. On personal search, the accused in the presence of HHC Chaman Lal and HC Parminder Kumar, as per memo. Ex. PW1/B, which was signed by HHC Chaman Lal and HC Parminder Kumar as attesting witnesses, nothing was recovered. Thereafter, the bag of the accused was searched, which he was carrying in his hand. In the bag of the accused, black substance wrapped in khaki tape in the shape of stick was found. On smelling and burning, the black substance was found to be charas. On weighing, it was found to be 2kg. The recovered charas alongwith polythene envelope, maroon coloured cloth and polythene bag was sealed in a parcel and thereafter, the parcel was sealed with five seals of impression ‘T’. Thereafter, the same was brought to the Police Station. FIR was registered and thereafter he has taken the file on the spot and handed over the same to the Investigating Officer. The Investigating Officer recorded the statement and prepared the spot map. The accused was arrested vide memo. Ex.PW1/E and the Investigating Officer informed the person to whom the accused want to inform about his arrest. FIR was registered and thereafter he has taken the file on the spot and handed over the same to the Investigating Officer. The Investigating Officer recorded the statement and prepared the spot map. The accused was arrested vide memo. Ex.PW1/E and the Investigating Officer informed the person to whom the accused want to inform about his arrest. Sealed parcel was Ext.P1, Ext. P2 was bag, maroon coloured bag Ex.P3, polythene wrapper Ex. P4, Charas Ex. P5, khakhi coloured tape Ex.P6., which were recovered from the accused. In cross-examination, this witness has admitted that there is a bridge at Talogi over Beas River and they were 500 mtrs at the end of the bridge. This witness has admitted that they started from Police Station, Kullu via Dhalpur, Gandhinagar upto Pirdi and crossed the bridge. The witness has admitted that across the bridge, there were many shops, hotels and densely populated area. He further admitted that there are many Gazetted Officers reside at place Dhalpur. He could not say whether it was written on the memo that accused is at liberty to give his search to the police. He denied the suggestion that any option was given to the accused for conducting his personal search and PSI has not asked any police officials to bring independent witnesses from the locality. 12. PW-2 HC Nirat Singh is a formal witness. He deposed that he was posted as Reader to Dy. S.P., Kullu since April, 2010. On 22.12.2012, at 10.40 am, Shri Ram Lal, Dy. S.P. handed over the special report Ex.PW2/A to him, which he entered in the register and kept the same on the record. 13. PW-3 HHC Ved Ram is also a formal witness. PW-4, HC Maya was working as MC, Kullu from August, 2010 till April, 2011 and deposed that on 2012.2010, SISHO Om Chand had deposited the case property i.e. parcel Ex.P1 allegedly containing one bag Marka Troter Shoes in which one cloth bag wrapped with maroon colour cello tape & 2 kg. Charas alongwith samples seals ‘T’ and ‘A’, copy of FIR, NCB I form in triplicate and seizure memo, which was entered in Malkhana register at Sr. No.191. She further has stated that the case property on 21.12.2010 through HHC Tek Chand was sent to FSL, Junga. 14. PW-5 HHC Tek Chand is a formal witness, who deposited the case property at FSL, Junga on 22.12.2010. No.191. She further has stated that the case property on 21.12.2010 through HHC Tek Chand was sent to FSL, Junga. 14. PW-5 HHC Tek Chand is a formal witness, who deposited the case property at FSL, Junga on 22.12.2010. PW-6 who was officiating SHO at that time, has deposed that he received rukka Mark ‘X’ through C. Chaman Lal, on which he had lodged FIR Ex.PW6/A and made an endorsement with red circle on rukka, which is Ex.PW6/B. He sent the case file to Constable Chaman Lal and he at about 11.30 AM handed over the case property alongwith NCB form, FIR after receiving the same and resealing and after completing the columns No. 9 to 11 of the NCB I form Ex. PW4/C, handed over the case property to MHC to keep the same in safe custody. 15. PW-7 is the SI-SHO, P.S. Aut, who deposed that at about 7 pm. When he was SHO, Police Station Aut, he alongwith HC Parvinder Kumar, C. Amar Singh, HHC Chaman Lal were on patrolling duty towards Jia side. On hearing the noise of a person of cuffing at place half Km from Talogi, they searched with the help of search light, one person was found coming from Jia side, who on seeing the police party, tried to run away, but he was nabbed at a distance of 20 feet by the police. The person when enquired about disclosed his name as Raj Kumar resident of village Sarsari Tehsil and District Kullu. There was neither any residential house nor shops at that place. The option was given to the accused whether he wants to be searched before Magistrate or Gazetted Officer or police. The accused had shown his willingness to be searched by the police vide Ex. PW1/A and the accused had given his consent in writing. PW-7 Anil Kumar, SI-SHO, Aut, gave his personal search to the accused in presence of HHC Chaman Lal and in the presence of Parminder Kumar Head Constable and memo. Ex.PW1/B was prepared. He further deposed that after taking the personal search of the accused, nothing was recovered from his personal search and on searching the bag of the accused, which he was carrying in his hand, black substance, wrapped in khaki tape in the shape of stick was found. On smelling and burning, the black substance was found to be Charas. He further deposed that after taking the personal search of the accused, nothing was recovered from his personal search and on searching the bag of the accused, which he was carrying in his hand, black substance, wrapped in khaki tape in the shape of stick was found. On smelling and burning, the black substance was found to be Charas. On weighing, it was found to be 2kg. The recovered charas alongwith polythene envelope, maroon coloured cloth and polythene bag was sealed in a parcel and thereafter, the parcel was sealed with five seals of impression ‘T’. He handed over the case property at about 11.30 pm, alongwith NCB Form to the officiating SHO Om Chand for resealing. He further deposed that he prepared the special report Ex.PW2/A on the same day and the same was handed over to the Dy.SP. He also deposed that he prepared the challan. In cross-examination, he has admitted that there are many Gazetted Officers in District Kullu. He has admitted that it was not written in the consent memo. that the accused was at liberty to search police officials. He also admitted that Pirdi is at a distance of 3-5 KM from Kullu police station. He also admitted that Café of Tourism, stalls of rafters, residential houses and restaurants are there at place Pirdi. He further admitted that he had not sent any police official to bring independent witnesses. 16. Shri Bupinder Ahuja learned counsel appearing for the accused has argued that when personal search of the accused was taken by the police, Section 50 of the NDPS Act was required to be complied with. He further argued that there were two options, which were required to be given by the Police to the accused. As per the statement of the prosecution witnesses, third option to be searched before the police was also given. He reiterated the evidence of the prosecution witnesses that accused was given option either to be searched before the Magistrate, Gazetted Officer or before the police. The learned counsel appearing for the accused has also argued that near the place there was many houses, shops, hotels but the police has made no attempt to join the independent witnesses. 17. He reiterated the evidence of the prosecution witnesses that accused was given option either to be searched before the Magistrate, Gazetted Officer or before the police. The learned counsel appearing for the accused has also argued that near the place there was many houses, shops, hotels but the police has made no attempt to join the independent witnesses. 17. Shri P.M. Negi, learned Deputy Advocate General has argued that the investigation conducted by the police is as per law and the Court below has rightly appreciated the same but the Court below has reduced the quantity from 2Kg. to 635 gms., which is against the law and the accused is required to be convicted for the recovery of 2kg. of charas, which is a commercial quantity and punished with severe punishment. On the other hand, learned counsel appearing for the accused has argued that the Court below has committed illegality in reducing the quantity of the Charas from 2kg to 635 gms. and the same is illegal and the quantity of the recovered charas is required to be taken into account. So, the accused is required to be convicted with higher punishment for possessing the commercial quantity. 18. To appreciate the arguments, we have gone through the record in detail. From evidence on record, it is clear that as per the Investigating Officer, it was a chance recovery. As per the statement of PW-1, the place was secluded and PSI asked the accused whether he wants to be searched before the Magistrate, Gazetted Officer or before police and accused has given willingness to be searched before police vide memo. Ex. PW1/A. The witness has admitted in cross examination that many Gazetted Officers reside at place Dhalpur (Kullu), which is at a distance of 4Kms. From the place of aforesaid alleged recovery. PW-7, Investigating Officer has also deposed that he asked the accused whether he want to be searched before Magistrate, Gazetted Officer or before the Police and when the accused consented to be searched by the police vide Ext. PW1/A in writing. The accused was searched after PW7 gave his personal search to the accused. 19. Their lordships of the Hon’ble Supreme Court in the case of Suresh and others vrs. PW1/A in writing. The accused was searched after PW7 gave his personal search to the accused. 19. Their lordships of the Hon’ble Supreme Court in the case of Suresh and others vrs. State of Madhya Pradesh, reported in (2013) 1 SCC 550 , have held that the accused were merely asked as to whether they would offer their personal search to the police officer concerned or to the gazetted officer. Thus, Section 50(1) was not complied with in respect of recovery of contraband from the person of appellants. It has been held as follows: “16. The above Panchnama indicates that the appellants were merely asked to give their consent for search by the police party and not apprised of their legal right provided under Section 50 of the NDPS Act to refuse/to allow the police party to take their search and opt for being searched before the Gazetted officer or by the Magistrate. In other words, a reading of the Panchnama makes it clear that the appellants were not apprised about their right to be searched before a gazetted officer or a Magistrate but consent was sought for their personal search. Merely asking them as to whether they would offer their personal search to him, i.e., the police officer or to gazetted officer may not satisfy the protection afforded under Section 50 of the NDPS Act as interpreted in Baldev singh’s case. 17. Further, a reading of the judgments of the trial Court and the High Court also show that in the presence of Panchas, the SHO merely asked all the three appellants for their search by him and they simply agreed. This is reflected in the Panchnama. Though in Baldev Singh’s case, this Court has not expressed any opinion as to whether the provisions of Section 50 are mandatory or directory but “failure to inform” the person concerned of his right as emanating from sub-section (1) of Section 50 may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. In Vijaysinh Chandubha Jadeja’s case (supra), recently the Constitution Bench has explained the mandate provided under sub-section (1) of Section 50 and concluded that it is mandatory and requires strict compliance. In Vijaysinh Chandubha Jadeja’s case (supra), recently the Constitution Bench has explained the mandate provided under sub-section (1) of Section 50 and concluded that it is mandatory and requires strict compliance. The Bench also held that failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. The concept of substantial compliance as noted in Joseph Fernadez (supra) and Prabha Shankar Dubey (supra) were not acceptable by the Constitution Bench in Vijaysinh Chandubha Jadeja, accordingly, in view of the language as evident from the panchnama which we have quoted earlier, we hold that, in the case on hand, the search and seizure of the suspect from the person of the appellants is bad and conviction is unsustainable in law. 18. We reiterate that sub-section (1) of Section 50 makes it imperative for the empowered officer to “inform” the person concerned about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate, failure to do so vitiate the conviction and sentence of an accused where the conviction has been recorded only on the basis of possession of the contraband. We also reiterate that the said provision is mandatory and requires strict compliance.” 20. Their Lordships of the Hon'ble Supreme Court in State of Rajasthan v. Parmanand reported in (2014) 5 SCC 345 , have held that there is a need for individual communication to each accused and individual consent by each accused under Section 50 of the Act. Their lordships have also held that Section 50 does not provide for third option. Their lordships have also held that if a bag carried by the accused is searched and his personal search is also started, Section 50 would be applicable. Their lordships have held as under: “15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand’s bag was searched. From the bag, opium was recovered. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand’s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application. 16. It is now necessary to examine whether in this case, Section 50 of the NDPS Act is reached or not. The police witnesses have stated that the respondents were informed that they have a right to be searched before a nearest gazetted officer or a nearest Magistrate or before PW-5 J.S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in Baldev Singh, it is not necessary to inform the accused person, in writing, of his right under Section 50(1)of the NDPS Act. His right can be orally communicated to him. But, in this case, there was no individual communication of right. A common notice was given on which only respondent No.2 – Surajmal is stated to have signed for himself and for respondent No.1 – Parmanand. Respondent No.1 Parmanand did not sign. 17. In our opinion, a joint communication of the right available under Section 50(1)of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval. 18. It bears repetition to state that on the written communication of the right available under Section 50(1)of the NDPS Act, respondent No.2 Surajmal has signed for himself and for respondent No.1 Parmanand. Respondent No.1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent No.2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent No.1 Parnanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated. 19. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated. 20. We have, therefore, no hesitation in concluding that breach of Section 50(1) of the NDPS Act has vitiated the search. The conviction of the respondents was, therefore, illegal. The respondents have rightly been acquitted by the High Court. It is not possible to hold that the High Court’s view is perverse. The appeal is, therefore, dismissed.” 21. So, in the present case, there is a non-compliance with the mandatory procedure as provided in Section 50 of the N.D. & P.S. Act, which has vitiated the entire proceedings initiated against the accused. 22. Now, second question whether the Investigating Officer has given his personal search to the accused. PW7 in his cross-examination has admitted that it is not written in the consent memo. that the accused is at liberty to search the police officials. This is also discrepancy in the prosecution case. 23. At the same point of time, the prosecution witnesses PW1 admitted in cross-examination that he crossed the bridge and there are many shops and hotels and the area is densely populated. PW-7 at the same point of time has stated that he had not sent any police officials to bring any independent witness. The non-joining of independent witnesses when available creates doubt in the prosecution case. 24. PW-7 at the same point of time has stated that he had not sent any police officials to bring any independent witness. The non-joining of independent witnesses when available creates doubt in the prosecution case. 24. As per the arguments made by the learned Deputy Advocate General regarding the reduction of the quantity of Charas is concerned, since there are no compliance of the provisions of Section 50 of the NDPS Act, therefore, this point does not require consideration, as even if the whole quantity is taken into consideration that makes no difference as there is no compliance of Section 50 of the NDPS Act. 25. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment and order of conviction and sentence dated 6.10.2012/09.10.2012, respectively, rendered by the learned Special Judge, Kullu, H.P., in Sessions trial No. 09 of 2011 and 69 of 2012, under Section 20 of the NDPS Act, is set aside. Accused is acquitted of the charges framed against him by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 26. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.