State appealed against acquittals under NDPS Act. High Court noted Non-compliance of Section 50 and lack of chemical analysis fortified acquittal. Appeal dismissed finding no infirmity.
Leave to appeal rejected; appeal dismissed; order of acquittal of respondents affirmed.
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Court No. - 13
Case :- GOVERNMENT APPEAL No. - 3203 of 2010
Appellant :- State Of U.P. Respondent :- Akil And Others 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 19.11.2009 passed by Additional Sessions Judge, Agra whereby the accusedrespondents were acquitted as follows :
(i) In Sessions Trial No. 1242 of 2007 (State v. Akil) arsing out of Crime No. 354 of 2007, accused-respondent - Akil was acquitted of the charge under Section 20(II)b of The Narcotic Drug and Psychotropic Substances Act, 1985 (in short 'Act, 1985'), Police Station - Sikandra, District - Agra;
(ii) In Sessions Trial No. 1243 of 2007 (State v. Bablu) arsing out of Crime No. 355 of 2007, accused-respondent - Bablu was acquitted of the charge under Section 20(II)b of Act, 1985; and
(iii) In Sessions Trial No. 1244 of 2007 (State v. Ansar) arsing out of Crime No. 356 of 2007, accused-respondent - Ansar was acquitted of the charge under Section 20(II)b of Act, 1985.
As per prosecution version, on 09.04.2007 at about 03.00 A.M., 200 grams of 'charas' was recovered from the possession of each of the accused respondents - Akil, Bablu and Ansar.
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-respondents were not apprised of their 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. Moreover, the fact whether the recovered contraband was send for chemical examination could not be proved.
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 leave to appeal should be granted against the order of acquittal in drug cases.
Whether failure to comply with Section 50 of the NDPS Act vitiated the recovery and acquittal below.
Colour shows how this judgement treated each authority
Vijaysinh Chandubha Jadeja v. State of GujaratReferred¶12
Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609 · Who else cites this
2 provisions across 1 enactments
State Of U.P.
Akil And Others
Umesh Chandra Tripathi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
