Strict compliance with Section 50 of the N.D.P.S. Act is mandatory, and failure to adhere to its provisions can vitiate the prosecution's case and lead to the acquittal of the accused.

JUDGMENT :

1. 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 16.09.2002 passed by learned Special/Additional Sessions Judge (E.C. Act), Bahraich in Sessions Trial No.62 of 1998, Case Crime No.309 of 1998, under Sections 8/20 of N.D.P.S. Act, Police Station Pakharpur, District Bahraich, convicting and sentencing the appellant under Section 20B(ii)B of N.D.P.S. Act for three years rigorous imprisonment alongwith fine of Rs.20,000/-and in default of payment of fine, the appellant was further directed to undergo six months’ rigorous imprisonment.

4. The prosecution story, in brief, as disclosed in the first information report, is that while the S.H.O. Udairaj Singh alongwith some police personnel was patrolling and searching some accused of another crime, he saw a man, who on seeing police vehicle, started fleeing away. The police party caught that man and on being asked his name, he told his name as Ali Hasan. The accused was further inquired as to why he was fleeing after seeing the police vehicle, in reply, he informed that he was carrying charas and he used to supply charas and for selling the same, he was going to Lucknow. The police party 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, a plastic bag was recovered containing charas. On the basis of aforesaid incident, Case Crime No.309 of 1998, under Sections 8/20 of N.D.P.S. Act was registered at Police Station Pakharpur, District Bahraich.

5. Investigation was handed over to the Sub Inspector Dayashanker Mishra, 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 Udairaj Singh, Inspector as P.W.-1, S.I. Ram Gopal Yadav as P.W.-2, Dayashanker Mishra, I.O. as P.W.-3 and Constable Radheshyam as P.W.-4.

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 with the Block Pramukh.

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 20B(ii)B of N.D.P.S. Act for three years rigorous imprisonment alongwith fine of Rs.20,000/-and in default of payment of fine, the appellant was further directed to undergo six months’ rigorous imprisonment.

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.

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