The Court rejected the State's appeal against the acquittal of Raj Kishore under the NDPS Act. The High Court found no infirmity in the trial court's observation regarding recovery formalities and the failure to inform the accused of rights under Section 50(1) of the NDPS Act.
Application seeking leave to appeal rejected; instant appeal dismissed.
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Court No. - 13 Case :- GOVERNMENT APPEAL No. - 3584 of 2010 Appellant :- State Of U.P. Respondent :- Rajkishore Counsel for Appellant :- G. A.
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 21.01.2010 passed by Special Judge/ Additional Sessions Judge, District - Mainpuri in Special Trial No. 20 of 2008 (State of U.P. Vs. Raj Kishore) whereby the accused-respondent - Raj Kishore was acquitted of the charge under Section 18/20 of the Narcotic Drug and Psychotropic Substances Act, 1985 (in short 'Act, 1985'), Police Station - Bhogaon, District - Mainpuri.
As per prosecution version, on 07.05.2008 at about 05:40 P.M., 5 Kg. prohibited contraband (Ganja) was recovered from the possession of accused-respondent Raj Kishore.
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 quantity of the prohibited contraband 'Ganja' alleged to have been recovered from the possession of the accused-respondent Raj Kishore 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 :- 13.9.2018 Sharad/-
2 issues framed by the court
Whether the leave to appeal against the acquittal of the accused under Section 18/20 of the NDPS Act should be granted.
Whether the observation by the trial court regarding the absence of public witness during recovery and non-compliance with Section 50(1) of the NDPS Act vitiated the decision.
Colour shows how this judgement treated each authority
Vijaysinh Chandubha Jadeja v. State of GujaratReferred¶7
Vijaysinh Chandubha Jadeja v. State of Gujarat reported in (2011) 1 SCC 609 · Who else cites this
2 provisions across 1 enactments
State Of U.P.
Rajkishore
Umesh Chandra Tripathi
As recorded by the court registry
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