The central legal point established in the judgment is the mandatory nature of the safeguards provided in the N.D.P.S. Act, particularly Section 50, and the requirement for strict compliance with these provisions to ensure the legitimacy of the search and seizure proceedings.

JUDGMENT :

SHAMIM AHMED, J.

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 29.05.2001 passed by learned Additional Sessions Judge, SC/ST (Prevention of Atrocities) Act, Sultanpur in Special Criminal Case No. 61 of 1998, Police Station Gosainganj, District Sultanpur, convicting and sentencing the accused under Section 20 of N.D.P.S. Act for two years rigorous imprisonment alongwith fine of Rs. 5,000/- (in default of payment of fine, the appellant was directed to undergo further six months rigorous imprisonment).

4. The prosecution story, in brief, is that S.I. Sri Ajit Kumar Singh, the then Officer-in-charge, Police Station Gosainganj was in search of criminals on 11.05.1998 at try-way Barui, Bisui and Imiliya alongwith constables Ranjit Singh, Bhanu Pratap Singh and driver Fateh Bahadur Singh when he noticed a person coming from towards Barui at 12:50 Noon took about turn with steps in speed on seeing police party. He was detained by going 20-25 paces and revealed his name Surju Mallah and gave out his parentage and address. On being asked the accused Surju Mallah told Sri Ajit Kmar Singh for having about 2 Kg. Ganja in the bag due to which reason he attempted to run away. The accused was told about his right to be searched in presence of Gazetted Officer but he agreed for being searched by Sri Ajit Kumar Singh when he was already been detained and admitted to have 2 Kg. Ganja in his possession. The recovered Ganja, wrapped in newspaper, was kept in plastic lining bag and sealed on the spot. The accused failed to show any license or authority to possess it which amounted to offence under Section 20 N.D.P.S. Act. The accused Surju was taken into custody and brought at Police Station Gosainganj with recovered article. Memo was prepared on the spot which was signed over by the witnesses and the accused. No public witnesses could be taken because of the sudden recovery of Ganja from possession of the accused.

5. Thereafter, a case under Section 8/20 of N.D.P.S. Act was registered at Police Station Gosainganj, District Sultanpur and investigation was handed over to the Sub Inspector Sri Rampal Tomar, 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 under Section 20 of 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 Sub Inspector Sri Ajit Kumar Singh as PW-1, Constable Bhanu Pratap Singh as PW-2 and Sub Inspector Rampal Singh Tomar as PW-3.

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 as he is a ricksaw puller and he refused to carry table on his ricksaw without fare on being asked by constable.

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 under Section 20 of N.D.P.S. Act for two years rigorous imprisonment alongwith fine of Rs. 5,000/- (in default of payment of fine, the appellant was directed to undergo further 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 tim