IMPORTANT POINT
Compliance with Section 50 of the NDPS Act is mandatory, and failure to inform the accused of his rights during a search can lead to acquittal.

JUDGMENT :

Pankaj Purohit, J.

This is an appeal preferred by the State under section 378 (3) of the Code of Criminal Procedure, 1973 (hereinafter to be referred as the “CrPC”) assailing the judgment and order dated 31.03.2004, passed by the learned Special Judge, Pithoragarh, in Session Trial No.05 of 2003, “State Vs. Hem Upadhyay”, whereby the said court has acquitted the respondent/accused for the offence punishable under section 20 of the Narcotic Drugs and Psychotropic Substances, 1985 (hereinafter to be referred as the “Act”).

2. In brief the facts of the case are that on 09.06.2003, at about 8 PM at place Bhadelbada Tiraha, Kumord, within the territorial jurisdiction of Police Station Kotwali and District Pithoragarh, the police recovered 500 gram of contraband article (charas) from the illegal possession of the accused, for which the accused did not have any licence. On the spot, the recovery memo exhibit ka 1 was prepared, on the basis of which the chik FIR exhibit ka 4, was prepared on the spot. The registration of the case was made in the general diary, a copy whereof of the exhibit ka (5). Before effecting the search, the consent letter from the accused (exhibit ka 2) was prepared. Memo of arrest (exhibit ka 5) was also prepared. During investigation, the Investigating Officer inspected the place of occurrence and prepared the site plan (exhibit ka 6). The recovered contraband was sent to the Forensic Science Laboratory, for which the memo (exhibit ka 7) was prepared. The report given by the Forensic Science Laboratory exhibit ka 8) is on record, according to which, the recovered contraband article was found to be “charas”. On completion of the investigation, the Investigating Officer has submitted the chargesheet against the respondent/accused in the court under sections 18/20 of the Act, which is (exhibit ka 9) on the record.

3. Vide order dated 29.08.2003, the learned Special Judge/Sessions Judge, Pithoragarh, framed the charge under section 20 of the Act against the accused, to which he denied and claimed to be tried. The prosecution in order to prove its case has produced as many as 4 witnesses, which are PW 1 Constable Satyapal Singh, PW 2 SO K.S. Rawat, PW 3 Constable Keshavlal and PW 4 SO P.C. Pandey. The accused did not lead any evidence in his defence and denied the allegations made against him in the statement recorded under section 313 of CrPC. After conclusion of the trial, the learned Trial Court proceeded to acquit the accused as mentioned in paragraph 1 of this judgment.

4. I have heard the learned counsels for the parties at length, and carefully perused the entire evidence available on record. The prosecution in order to prove its case has produced PW 1, according to him, on 09.06.2003, at about 8 PM, 500 gram of “charas” was recovered from the accused, for which he did not have any licence. PW 1 Constable Satyapal Singh, reiterated the version of the FIR. According to him, on 09.06.2003, he along with other police personnel had gone for patrolling duty. At the relevant point of time one person at the spot, one person was found on the way leading to Kumord. The police personnel came down from jeep, checked that person and caught him. On being asked, he disclose his name as Hem Upadhyay (respondent-accused). On being nabbed, he had shown the “charas” wrapped in a polythene bag. Since it was a lonely place, the accused was taken into custody. A weight scales was brought and on weighing the contraband, it was found to be 500 gram. The necessary formalities were done on the spot.

5. Similarly PW 2 K.S. Rawat, Station House Officer, was also examined, who also duly corroborated the evidence given by the PW 1. He also stated that the accused gave a consent letter on the spot, and stated that he wants to being searched before the police personnel only.

6. PW 3 Keshavlal, another police constable was also examined, who also stated the version as made in the body of the FIR.

7. PW 4 P.C. Pandey, is the Investigatin