The central legal point established in the judgment is the mandatory nature of Section 50 of the N.D.P.S. Act, the requirement for clear and individual communication of the right to be searched before a gazetted officer or Magistrate, and the need for strict compliance with these provisions to safeguard against false implication.

JUDGMENT :

SHAMIM AHMED, J.

1. This appeal has been preferred against the judgment and order dated 18.01.2005/ 24.01.2005 passed by learned Additional District and Sessions Judge (FTC-III), Court No. 12, Sultanpur, convicting the appellant in Criminal Case No. 8/2004, under Section 8/21 of N.D.P.S. Act, Police Station Jagdishpur, District Sultanpur and sentencing him for five years rigorous imprisonment alongwith fine of Rs.6,000/- under Section 8/21 of N.D.P.S. Act.

2. Briefly stated, the facts of the prosecution case are that on 28.01.2004, Station House Officer, S.P. Gupta, posted at Police Station Jagdishpur, District Sultanpur, was on patrolling duty in search of wanted criminal along with Sub Inspector Bhola Prasad, Head Constable Shiv Dutt Singh, Constable Ram Murti Prajapati, Constable Shyam Shanker Saroj, Constable Santosh Kumar Singh and Constable Driver Rama Shanker Tiwari and as the patrolling party reached Gulab Ganj Crossing, they saw four to five persons standing at west side of Jagdishpur Bus Depot in suspicious condition and tried to escape from there. The police party, on sensing some doubt in view of their conduct, apprehended and caught them on spot. Upon interrogation, they confessed that they were carrying morphine; they were told that they had options either to get them searched before Gazetted Police Officer or before patrolling police officer. Thereupon, they asked the police party to conduct search upon them. Thereafter, accused were searched out by patrolling police party with their consent. One accused told his name as Naeem S/o Jameel and 100 gm morphine was recovered from his trouser’s right pocket whereas Rs.1,100/- were recovered from left pocket. Second accused told his name as Mustafa Chunnu and 100 gm morphine was recovered from his trouser’s right pocket whereas Rs.900/- were recovered from left pocket. Third accused told his name as Yusuf S/o Munne and 100 gm morphine was recovered from his trouser’s right pocket whereas Rs.700/- were recovered from left pocket. Fourth accused told his name as Shamshad S/o Shafiq and 100 gm morphine was recovered from his trouser’s right pocket whereas Rs.600/- were recovered from left pocket. Thereafter, recovery memo was prepared; recovered contraband morphine was sealed; all the accused were arrested and a criminal case on the basis of recovery memo was lodged under Sections 8/21 of N.D.P.S. Act at Police Station Jagdishpur, District Sultanpur.

3. Investigation was handed over to the Sub Inspector Ram Pal Singh, who recorded the statement of witnesses; inspected the place of occurrence and prepared site plan; recovered contraband morphine was sent to Forensic Science Laboratory, Lucknow, U.P. for chemical examination. After investigation charge sheet was filed against the appellant.

4. The accused-appellant was charged for offence u/s 8/21 N.D.P.S. Act; to which he pleaded not guilty and claimed for trial.

5. In support of the prosecution case, the prosecution examined Constable Ram Murti Prajapati as PW-1, Station House Officer S.P. Gupta as PW-2, Constable Chhangu Ram as PW-3 and Sub Inspector Ram Pal Singh as PW-4.

6. Genuineness of the formal police papers i.e. F.S.L. Report (Ex.Ka-6) and Charge Sheet (Ex.Ka-10) were admitted by the appellant.

7. 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 as he did not pay the money to the police officers.

8. 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 for five years rigorous imprisonment alongwith fine of Rs.6,000/- under Section 8/21 of N.D.P.S. Act.

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

10. Learned counsel for the appellant submitted that prosecution case, based on statements of Constable Ram Murti Prajapati (PW-1) and St