Appeal against acquittal in possession of charas rejected. Leave to appeal refused as conviction suppression was properly viewed under Section 50(1) of NDPS Act.
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Court No. - 13 Case :- GOVERNMENT APPEAL No. - 3040 of 2001 Appellant :- State Of U.P. Respondent :- Raja Ahmad & Another Counsel for Appellant :- A.K. Verma
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 01.06.2001 passed by Additional Sessions Judge IVth, District - Budaun in Special Trial Nos. 12 of 1997 (State Vs. Raja Ahmad) and 13 of 1997 (State Vs. Raju) whereby the accused-respondents - Raja Ahmad and Raju were acquitted of the charge under Section 20 of the Narcotic Drug and Psychotropic Substances Act, 1985 (in short 'Act, 1985'), Police Station - Kotwali, District- Budaun.
As per prosecution version, on 06.06.1996 at about 03:30 p.m., 100 gm. prohibited contraband (Charas) was recovered from the possession of each accused-respondent Raja Ahmad and Raju.
Learned trial court observed that there was no public witness of the alleged recovery.
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 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.
The quantity of the prohibited contraband 'Charas' alleged to have been recovered from the possession of the each accused-respondent Raja Ahmad and Raju is much less than the commercial quantity.
In view of above, the application seeking leave to appeal is rejected and consequently, the instant appeal stands dismissed .
Order Date :- 14.9.2018 Sharad/-
State Of U.P.
Raja Ahmad
Raju
Umesh Chandra Tripathi
As recorded by the court registry
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