IMPORTANT POINT
Recovery of Ganja – Non-production of independent eye witness is a serious lacuna which can make prosecution case doubtful.

JUDGMENT

Shamim Ahmed, J.—The case is taken up in the revised call.

2. Heard learned counsel for the parties.

3. This appeal has been preferred against the judgment and order dated 01.12.2006 passed by learned Additional Sessions Judge / Fast Track Court No.1, Raebareli in S.T. No.25/1998, Police Station Sareni, District Raebareli, convicting and sentencing the appellant under Section 20 of N.D.P.S. Act for three years rigorous imprisonment alongwith fine of Rs.10,000/- with default stipulation.

4. The prosecution story, in brief, as disclosed in the first information report, is that while the S.H.O. Rameshwar Singh alongwith other police personnel were searching accused of other case, they saw four persons on a jeep who were unloading some sacs. The police personnel caught them and asked the accused whether he want to get searched by a gazetted officer or police may make a search upon him. The accused consented that police may make search upon him. On being searched, ganja as well as liquor bottles were recovered from the accused persons. On the basis of aforesaid incident, Case Crime No.60 of 1997 and 61 of 1997, under Section 60 of Excise Act and Section 8/20 of N.D.P.S. Act and Case Crime No.62 of 1997, under Section 18/20 of N.D.P.S. Act was registered at Police Station Sareni, District Raebareli.

5. Investigation was handed over to the Sub Inspector, who in turn got the sample chemically examined and received a report. He took the statements of witnesses of recovery and prepared the site plan and on finding sufficient evidence, he filed charge sheet against the accused in the Court.

6. The accused-appellant was charged for offence u/s 8/20 N.D.P.S. Act; to which he pleaded not guilty and claimed for trial.

7. In support of the prosecution case, the prosecution examined P.W.-1 Sub Inspector Janardan Prasad, P.W.-2 Inspector Rishi Kumar, P.W.-3 Constable Shivnand and P.W.-4 Constable Ramautar Shukla.

8. Formal proof of prosecution papers have been admitted by the accused.

9. Appellant was examined under Section 313 of Code of Criminal Procedure, 1973, (in short ‘Code’) wherein he stated that he had been falsely implicated due to enmity. No witness in defence were accused by the accused persons.

10. Learned trial Court, after going through the evidence available on record as well as after due hearing the learned counsel for both the parties, convicted and sentenced the appellant under Section 20 of N.D.P.S. Act for three years rigorous imprisonment alongwith fine of Rs.10,000/- with default stipulation.

11. Aggrieved by the aforesaid judgment and order, the appellant has filed this appeal.

12. Learned counsel for the appellant argued that Section 50 of the N.D.P.S. Act is a mandatory provision. The arresting officer has not complied with that provision. As such, the recovery is illegal which vitiates the trial. Learned counsel further submitted that the alleged place of recovery is public place but no effort to invite the public witness at the time of recovery was made by the police party. Learned trial Court without proper appreciation of the evidence available on record has illegally convicted the appellant vide impugned judgment and order which is liable to be set aside as the prosecution has miserably failed to prove its case beyond reasonable doubt. In support of his argument learned counsel for the appellant has placed reliance on law laid down by Hon’ble Supreme Court in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, 2010 (2) EFR 755 and State of Rajasthan Vs. Parmanand and another, (2014) 2 SCC (Cri) 563.

13. Learned A.G.A. vehemently opposed the submission of learned counsel for the appellant and submitted that there is no illegality in the impugned judgment and order as it is settled provision of law that only on the solitary testimony of witness, conviction can be maintained and statement of police witness cannot be rejected on the ground that he is a police witness. Learned A.G.A. further submitted that impugne