IMPORTANT POINT
The mandatory requirement of Section 50 of the N.D.P.S. Act must be strictly followed, and failure to do so can lead to the acquittal of the accused due to insufficient evidence.

JUDGMENT :

HON'BLE SHAMIM AHMED

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 13.07.2006 passed by learned Additional Sessions Judge, F.T.C.-VII, Lucknow in Sessions Trial No.176 of 2002, whereby the appellant has been convicted and sentenced for three months imprisonment for the offence under Section 8/18/21 of NDPS Act alongwith fine of Rs.2,000/-

4. The prosecution story, in brief, as disclosed in the first information report, is the Sub Inspector Arvind Kumar got an information from a reliable source that a man is selling smack near RPM Quarter Line, therefore, he alongwith some police personnel went to search him. The police party caught that man and on being asked his name, he told his name as Mohd.Yusuf. On being searched, 30 packets of smack were recovered from his possession. On the basis of aforesaid incident, Case Crime No.176 of 2002, under Sections 8/18/21 of N.D.P.S. Act was registered at Police Station Alambagh, District Lucknow.

5. Investigation was handed over to the Sub Inspector K.K. Yadav, 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 8/18/21 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 S.I. Arvind Kumar as P.W.-1, Constable Hasan Afroz as P.W.-2, Sughar Singh as P.W.-3 and K.K. Yadav, S.I. 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.

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 for three months imprisonment for the offence under Section 8/18/21 of NDPS Act alongwith fine of Rs.2,000/-.

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.

13. Learned A.G.A. vehemently opposed the submission of learned counsel for the appellant and submitted that there is no illegality in the impugned judgment and order as it is settled provision of law that only on the solitary testimony of witness, conviction can be maintained and statement of police witness cannot be rejected on the ground that he is a police witness. Learned A.G.A. further submitted that impugned judgment and order, passed by trial Court, is well reasoned, well discussed and appeal is liable to be dismissed.

14. After considering the arguments advanced by learned counsel for the parties and after perusal of record, this Court finds that the prosecution case is based on oral testimony of police personnel. It is settled principle of l