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2003 Supreme(All) 418
IN THE HIGH COURT OF ALLAHABAD
R. C. DEEPAK
BENI PRASAD - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
Cri. A. 171 Of 2001
Decided On : 02/26/2003
A.P.TEVARI, PRAKASH CHANDRA SRIVASTAV, R.B.YADAV, S.S.TRIPATHY
Non-compliance with the mandatory provisions of the NDPS Act, particularly Section 50, can entitle the accused to be acquitted.
Headnote:
NDPS Act - Criminal Appeal - Section 8/20b (ii) - Summary of Acts and Sections: The court discussed the provisions of Section 50 of the NDPS Act, emphasizing the mandatory nature of the provision and the consequences of non-compliance. The court also referred to a case law (Beekodan Abdul Rahman v. State of Kerala) where the Supreme Court held that non-compliance with the mandatory provisions of the Act entitled the accused to be acquitted.
Fact of the Case:
The appellant was convicted and sentenced under Section 8/20b (ii) NDPS Act for possession of Charas. The prosecution case involved a search and seizure operation based on information received by the informant.
Finding of the Court:
The court found various factual and legal infirmities, vagueness, and ambiguity in the prosecution case and evidence. It emphasized the mandatory nature of Section 50 of the NDPS Act and the consequences of non-compliance, ultimately leading to the acquittal of the appellant.
Issues: The issues included the vagueness and ambiguity in the charges, lack of evidence on crucial points, and non-compliance with the mandatory provisions of Section 50 of the NDPS Act.
Ratio Decidendi: The court's decision was influenced by the non-compliance with the mandatory provisions of Section 50 of the NDPS Act, as well as the presence of factual and legal infirmities in the prosecution case and evidence.
Final Decision: The court set aside the judgment and order of the trial court, acquitted the appellant of the offence under Sections 8/20b (ii) NDPS Act, and ordered the appellant's release from jail.
( 1 ) THIS is a criminal appeal against the judgment and order of the then Additional District and Sessions Judge, Maharajganj dated 25-1-2001 in Special Case No. 79 of 1994 convicting and sentencing the accused appellant under Section 8/20b (ii) N. D. P. S. Act to 10 years Rigorous Imprisonment and a fine of Rs. 1 lac and in default of payment of fine he shall further undergo 3 years R. I.
( 2 ) THE prosecution case briefly stated is that on 20-6-1990 the informant in the case Tribhuwan Singh Rathore, the then Station Officer of P. S. Nautanwa district Maharajganj was on patrol duty accompanied by Police Constable Yogendra Nath Shukla and Police Constable Sujauddin, at about 9:30 in the night, he received an information from an informer that accused Beni Prasad along with another having Charas were coming from Nepal and they would enter the territory of India through Tumohanua Ghat, if efforts were to be made, the Charas would be recovered. Relying upon this information he took public witnesses named Basir Ahmad and Dashrath from Kasba Nawtanwa and stepped by road leading to Dumohanua Ghat, ambushed in a bush situated on the northern side of the Christian School, at about 10. 20 two persons were seen coming from the side of Nepal. As they came nearer they were directed to stop. They tried to run away but apprehended on spot, on being interrogated, both disclosed their identities as Beni Prasad and Deep Shanker Upadhyay. Both persons were searched. A leather bag containing 1 kg. Charas covered with a plastic and Rs. 93300. 00 was recovered from the possession of Beni Prasad while 1 kg. Charas was also recovered from a plastic bag from the possession of Deep Shanker Upadhyay besides Rs. 10. 00 note.
( 3 ) THE said recovered articles were taken into the custody of the police and the separate samples were taken from the said Charas and sealed. Regarding the money recovered, the abovenamed persons disclosed that they had gone to Nepal to purchase Charas, but could not get it in sufficient quantity. The recovery memo as Ext. Ka-1 was prepared on the spot in the light of the torch and the signatures of the arrested accused persons were obtained on the recovery memo, on the basis of this recovery memo the First Information Report marked as Ext. Ka-3 was registered against them at 11. 20 p. m. at P. S. Nautanwa and an entry was also made in the General Diary Ext. Ka-2. The accused persons were arrested and they were told why they were arrested.
( 4 ) THE investigation into the case was immediately entrusted to Sub-Inspector Gorakh Prasad who after completion of the investigation into the case, submitted charge-sheet against the accused persons. Ultimately separate charges were framed against each of them.
( 5 ) TO prove its case the prosecution examined Tribhuwan Singh Rathore (P. W. 1), Suryanath Yadav (P. W. 2), Gorakh Prasad, Investigating Officer (P. W. 3) and also filed certain documents. P. W. 1 and P. W. 2 are the witnesses of the fact whereas P. W. 3 is formal one. The accused pleaded not guilty. He has stated that he has been falsely implicated in the case on account of enmity. He has also examined Rajdev Mishra (DW-1) in support of the defence version that he was arrested from his house.
( 6 ) THE trial Court convicted the appellant and awarded the sentence against which the present appeal has been filed, as already referred to above.
( 7 ) I have heard Mr. P. C. Srivastava, learned counsel for the accused-appellant, learned A. G. A. for the State and perused the entire record.
( 8 ) THE charge framed against the accused appellant is reproduced as under : (Vernacular matter omitted. . . . Ed.)
( 9 ) A perusal of the above charge would show that there is no indication therein as to who caught hold of the accused appellant, who made the search on him, who recovered the articles (Charas) from his possession and who arrested him and who ultimately prepared the fard in respect of the articles alleged to have been r
