Dismissed

State of Rajasthan v. Mangal Singh @ Mahesh Babu S/O Sonelal

Rajasthan HC30 May 2023CRLLA/137/2019

Case brief

AI extract

What is this about?

The High Court dismissed the State's Criminal Leave to Appeal against an acquittal in an NDPS case. The court held that the non-observance of Section 50 of the NDPS Act rendered the recovery suspicious and flawed, denying the state sufficient grounds to overturn the lower court's decision.

What did the court decide?

Leave to appeal was dismissed; the State’s application stood disposed of.

State of Rajasthan Vs Mangal Singh @ Mahesh Babu S/O… — Narcotics (NDPS) | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Leave To Appeal No. 137/2019

State Of Rajasthan

----Appellant

Versus

Mangal Singh @ Mahesh Babu S/o Sonelal

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----Respondent

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For Appellant(s)	: Mr. Imran Khan,PP
For Respondent(s)	:

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order

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30/05/2023

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Present leave to appeal is preferred against order dated 13.09.2018 in Sessions Case No.04/2014 passed by learned Special Judge (NDPS Act cases) and Sessions Judge, Bharatpur whereby respondent accused was acquitted from charge under Section 8 read with 21 of NDPS Act

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Learned Public Prosecutor while relying upon State of Himachal Pradesh Vs. Sunil Kumar (Criminal Appeal No. 1101/2005) order dated 05.03.2014 passed by Hon’ble Supreme Court has submitted that in this case there was accidental or chance recovery of narcotics during a personal or body search. Thus, the provisions of Section of 50 of NDPS could not be attracted. He further submitted that in this case during law and order duty when the activity of respondent accused was found suspicious, he was intercepted and searched by police upon which it was found that he is carrying contraband article. He further submitted that after the search, it was found that respondent accused was having conscious possession of 240 grams of smack (heroin). Therefore, police has effected search and seizure activity

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[CRLLA-137/2019]

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(2 of 3)

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on spot. He further submitted that learned trial court without considering the fact had arrived at a conclusion that compliance of mandatory provision of NDPS Act was not ensured before seizure of the article. Therefore, relying heavily upon aforesaid judgment in case of State of Himachal Pradesh Vs. Sunil Kumar (supra), he further submits that this is a case wherein learned trial court had committed serious error.

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Considered the aforesaid submissions of learned Public Prosecutor and also perused the judgment of Hon’ble Supreme Court in the case of State of Himachal Pradesh Vs. Sunil Kumar (supra).

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As regard to observance of Section 50 of the NDPS Act is concerned, the matter was considered by a Constitution Bench of Hon’ble Supreme Court in case of Vijaysingh Chandubha Jadeja Vs. State of Gujarat (Criminal Appeal No. 943/2005) order dated 29.10.2010, wherein it was opined that it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. Thus, the obligation under Section 50(1) of NDPS Act is mandatory and strict compliance is required. It was further held by Hon’ble Supreme Court that noncompliance would render the recovery of contraband article suspicious and vitiate the conviction if same is recorded only for the purpose of recovery during search of person.

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In view of aforesaid it is clearly indicated that observance of Section 50(1) is mandatory. Herein, the document as referred by learned Public Prosecutor and also perusal from the record of Public Prosecutor clearly indicated that during search it was found

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[CRLLA-137/2019]

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(3 of 3)

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that packets were kept in shoes of respondent accused and on further enquiry it was found that it was heroin. The fact of the matter is that assuming the fact that search was affected due to suspicion and by chance shoes were taken off and the plastic bag was found. But afterwards when the proceedings were effected and after knowing the fact that it is contraband narcotics then, it was duty of SHO to observe procedure prescribed under the law as far as possible. But herein on spot, except for recovery nothing was found and it was noticed by learned trial court. The evidence as noticed by learned trial court clearly indicated that there was over writing and also certain columns were left blank. Even report of daily diary was not found in order by learned trial court. Thus, not only on the basis of non-observance of Section 50 of NDPS Act but also on other grounds learned trial court had acquitted the respondent accused. Even if we consider a chance or accidental recovery, even then the discrepancies as noticed by learned trial court dents the entire case of prosecution.

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Hence, no case is made out for grant of leave to appeal. Therefore, the reasons and submissions of learned Public Prosecutor are not of much help for the State.

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In view of aforesaid, there are no grounds required to be considered by this court.

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Hence, leave to appeal is devoid of merits. Therefore, same is dismissed.

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Misc. application, if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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CHETNA BEHRANI /9

State of Rajasthan v. Mangal Singh @ Mahesh Babu S/O Sonelal

Case brief

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State of Rajasthan v. Mangal Singh @ Mahesh Babu S/O Sonelal

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