Failure to comply with Section 50 of the N.D.P.S. Act renders drug recovery inadmissible, warranting acquittal.

JUDGMENT :

Pradeep Kumar Srivastava, J.

1. We have already heard Mr. Binod Kumar, learned counsel appearing for the appellant and Mrs. Nehala Sharmin, learned Spl. P.P. appearing for the State.

2. It is to be mentioned at the very outset that appellant No.1 Krishna Rai died during the pendency of this appeal and vide order dated 22.07.2025, appeal of Krishna Rai has been abated.

3. Instant criminal appeal arises out of judgment of conviction and sentence of the appellant passed by 1^st Additional Sessions Judge cum Special Judge, Bokaro in G.R. Case No.1412 of 1995 dated 12.03.2003 and 13.03.2003 respectively, whereby and whereunder the appellant has been held guilty for the offences under Section 21 of the Narcotic Drugs and Psychotropic Substances Act , 1985 and sentenced to undergo R.I. for 10 years along with fine of Rs.1,00,000/- with default stipulation.

FACTUAL MATRIX

4. Factual matrix giving rise to this appeal is that on 20/21.11.1995 at about 03:30 a.m., S.I. Muktinath Singh in the course of patrolling duty received a confidential information that in the hut of Dundibagh near Khatal, illegal sale of brown sugar is going on. Accordingly, a police patrolling party headed by informant along with other armed forces proceeded to verify the said information and reached at the place of occurrence, then two persons started fleeing away who were chased and apprehended. It is further alleged that in the presence of two independent witnesses namely, Subhas Yadav and Ramjee Tewary search was conducted and one puria of brown sugar was recovered from the kurta of accused Krishna Rai (deceased). The other miscreant disclosed his name as Umesh Rai and upon search one puria of brown sugar was recovered from the pocket of his shirt, which was also brown sugar. Accordingly, seizure list was prepared in presence of witnesses and apprehended accused persons were remanded to judicial custody.

On the basis of written report of informant (Ext.3) B.S. City P.S. Case No.450 of 1995 dated 21.11.1995 was registered for the offences under Sections 21 , 22 and 25 of the N.D.P.S. Act and charge of investigation was given to S.I. Sitaram Singh, who after conclusion of investigation submitted charge-sheet against the above named two accused persons for the aforesaid offences.

5. The accused persons denied the charges levelled against them and claimed to be tried.

6. In the course of trial, altogether 4 witnesses were examined by the prosecution along with one court witness (C.W.1) Shankar Thakur, Advocate Clerk.

Apart from oral testimony of above witnesses, following documentary evidence have been adduced :-

7. On the other hand, one witness namely, Kauleshwar Mahato (D.W.1) was examined on behalf of accused Umesh Rai (present appellant).

8. The case of defence is denial from occurrence and false implication.

9. The learned trial court after scrutinizing the evidence available on record oral as well as documentary led by the parties recorded the finding of guilt of the appellant for the offence under Section 21 of the N.D.P.S. Act and the present appellant was sentenced to undergo R.I. for 10 years along with fine of Rs.1,00,000/- with default stipulation.

10. Learned counsel for the appellant assailing the impugned judgment of conviction and sentence has strenuously argued that the learned trial court has miserably failed to appreciate that in case of search of person, Section 50 of the N.D.P.S. Act mandates that the search and seizure must be effected in presence of Gazetted Officer, which has been ignored by learned trial court, simply assigning the reason that the occurrence took place at about 03.30 a.m. and at this odd time