The Division Bench dismissed the State appeal against the acquittal of the accused. The court held that the trial court's view that Section 50 of the NDPS Act was not complied with was a possible one based on reasoning, finding no infirmity.
Application seeking leave to appeal rejected; instant appeal dismissed.
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Court No. - 13
Case :- GOVERNMENT APPEAL No. - 2731 of 2010
Appellant :- State Of U.P. Respondent :- Mohd. Ehtesham Faisal Counsel for Appellant :- Govt. Advocate
Hon'ble Umesh Chandra Tripathi,J.
Heard learned A.G.A. for the State-appellant.
By way of instant government appeal, prayer has been made on behalf of State-appellant to grant leave to appeal against the judgment and order dated 07.10.2009 passed by Additional Sessions Judge, Fast Track Court No. 03, District - Gorakhpur, in Special Sessions Trial No. 45 of 2008 (State of U.P. v. Mohd. Ehtesham Faisal) whereby the accused-respondent - Mohd. Ehtesham Faisal was acquitted of the charge under Section 8/20 of The Narcotic Drug and Psychotropic Substances Act, 1985 (in short 'Act, 1985'), Police Station - Shahpur, District - Gorakhpur.
As per prosecution version, on 18.08.2007 at about 04.15 A.M., 1 kg. 500 grams of 'ganja' (contraband) was recovered from the possession of accused-respondent Mohd. Ehtesham Faisal.
Learned trial court observed that there was no public witness of the alleged recovery. The provision of Section 50 of Act 1985 has not been complied with by the police.
From the perusal of impugned judgment and order, it reveals that the accused-respondent was not apprised of his right to be searched before a gazetted officer or a Magistrate, in view of law laid down by Hon'ble Apex Court in Vijaysinh Chandubha Jadeja v. State of Gujarat reported in (2011) 1 SCC 609. In the above case law, Hon'ble Apex Court observed that failure to comply with the proviso of Section 50(1) of Act, 1985 would render the recovery of 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 quantity of the contraband alleged to have been
recovered from the possession of the applicant is much less than the commercial quantity.
The view taken by the learned trial court is possible one and based on reasoning. Accordingly, I find no infirmity in the impugned order passed by the trial court.
In view of above, the application seeking leave to appeal is rejected and consequently, the instant appeal stands dismissed .
Order Date :- 6.9.2018 I. Batabyal
2 issues framed by the court
Whether the trial court committed any infirmity in acquitting the accused due to non-compliance with Section 50(1) of NDPS Act, 1985.
Whether leave to appeal should be granted against the acquittal of the accused in the NDPS case.
Colour shows how this judgement treated each authority
Vijaysinh Chandubha Jadeja v. State of GujaratExplained¶9
(2011) 1 SCC 609 · Who else cites this
2 provisions across 1 enactments
State Of U.P.
Mohd. Ehtesham Faisal
Umesh Chandra Tripathi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
