The mandatory nature of Section 50 of the N.D.P.S. Act, the significance of individual communication of the right to the accused, and the necessity for strict compliance with the prescribed procedure.

JUDGMENT :

1. List has been revised.

2. Heard learned Counsel for the parties.

3. This appeal has been preferred against the judgment and order dated 23.07.2007 of Additional Sessions Judge, Barabanki Fast Track Court No.30 in Crl. Trial No.71/2002 (Crime No.17/2002 under Section 8/21 of N.D.P.S. Act); State vs. Gurudeen and in Crl. Trial No.72 of 2002 (Crime No.18/2002 under Section 8/21 N.D.P.S. Act); State vs. Nanhkau Loniya both sent from Police Station-G.R.P. Barabanki and tried together as such with conviction by one common judgment dated 23.07.2007 awarding one year rigorous imprisonment & Rs.10,000/-fine to both the appellants in default of payment of fine rigorous imprisonment of three months each.

4. The prosecution story, in brief, as disclosed in the first information report, is that S.O. G.R.P. Barabanki, Shri V.K. Singh and his personnel found both the appellants in suspicious circumstances during gasht on platform No.3 Barabanki Railway Station at 1:35 P.M. on 24.02.2002. They tried to escape but were arrested and told the police that they had morphine and were to entrain the 3308 DN Kisaan Express for Durgapur in West Bengal vide fard Ex-ka-6 180gm of morphine and Rs.180/-from personal search of Gurudeen and 160 gm of morphine and Rs.85/-from Nanhkau Loniya with no Railway ticket was the resultant recovery as both had jointly consented to be searched by police party. When apprised of option under Section 50 of N.D.P.S. Hence, this case with the conviction detailed above vide common judgment and order dated 23.07.2007 in C.T. No.71/2002 and 72/2002.

5. Investigation was handed over to the Investigating Officer, 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-appellants was charged for offence u/s 8/21 N.D.P.S. Act; to which they pleaded not guilty and claimed for trial.

7. In support of the prosecution case, the prosecution examined H.C.P. Ram Sewak Mishra as P.W.-1, S.I. V.K. Singh as P.W.-2, Constable Laxmi Narayan Mishra as P.W.-3, Constable Salig Rai as P.W.-4, S.I. Rajendra Bahadur Singh as P.W.-5 and Constable Pawan Sut as P.W.-6.

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

9. The accused-appellants in order to substantiate their case examined Mohley as D.W.-1, Parshuram Sharma as D.W.-2 and Sudharshan as D.W.-3.

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 that appellants by one common judgment dated 23.07.2007 awarding one year rigorous imprisonment & Rs.10,000/-fine to both the appellants in default of payment of fine rigorous imprisonment of three months each.

11. Aggrieved by the aforesaid judgment and order, the appellants have filed this appeal.

12. Learned counsel for the appellants 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 appellants 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 appellants 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 appellan