[2023/RJJP/007280]

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Leave To Appeal No. 23/2022

The State Of Rajasthan, Through P.p.

----Appellant

Versus

Sabhir Hussain Son Of Ahmed Ali, Aged About 40 Years, Resident

Of Idgaah Ke Paas, Badora Thana Mothpur District Baran (Raj.)

----Respondent

For Appellant(s)

:

Mr. S.S. Mehla, PP

For Respondent(s)

:

None.

HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

Order

19/04/2023

Heard learned Public Prosecutor.

None appeared after service upon respondent.

Present leave to appeal is preferred against order of acquittal

dated 23.09.2021 in Sessions Case No.75/2019 passed by learned

Special Judge (NDPS Cases), Baran whereby respondent-accused

was acquitted from charge under Section 8/2021 NDPS Act.

Learned Public Prosecutor had submitted that this was a

matter of chance recovery and it was not possible for the police to

procure attendance of independent witnesses on the spot. He

further submitted that a recovery process can be effected even in

absence of independent witnesses. He further submitted that

there was no necessity to comply with the other provisions as

cited by learned trial court because the matter pertained to

chance recovery. He further submitted that the order of acquittal

was passed on surmises and conjectures and there was enough

[2023/RJJP/007280]

(2 of 3)

[CRLLA-23/2022]

evidence on record to interfere in the order of acquittal passed by

learned trial court.

Having considered the submissions made by learned Public

Prosecutor and perused the record.

The star witness is PW-5, Bhanwar Singh who was in-charge

of police station, who along with other police personnel

intercepted a motor cycle during nakabandi wherein respondent-

accused was detained. On search in person, a plastic packet

containing the psychotropic substance of brown colour was found,

the weight of the same being 15 gm and identified as smack. The

documents exhibited during evidence of prosecution clearly

indicated that notice under Section 50 of the NDPS Act was not

exhibited and no positive evidence was led by any witness of

prosecution including PW-5. The fact of chance recovery during

nakabandi can be considered in support of other provisions prior

to Section 50 but Section 50 of NDPS Act, prescribes the

conditions under which search of person shall be conducted. It

prescribes that any officer authorized under Section 42, who is

about to search any person under the provision of Sections 41, 42

or 43, he shall, if such person so requires, be taken without

unnecessarily delay to the nearest Gazetted Officer or nearest

Magistrate. It is further prescribed that person desires to be

searched before Gazetted Officer or Magistrate brought before

them and the Gazetted Officer or the Magistrate whomsoever it

may be concerned after he sees no reasonable ground for search,

shall forthwith discharge the person but otherwise shall direct the

search be made.

[2023/RJJP/007280]

(3 of 3)

[CRLLA-23/2022]

Aforesaid provision clearly protects the dignity and sanctity

of search in persona and herein this provision was not kept in

mind while effecting recovery from respondent. A Constitution

Bench of Hon’ble Supreme Court in the case of

Vijaysinh Chandubha Jadeja Vs. State of Gujarat reported in

(2011) 1 SCC 609 has clearly laid down that observance of

Section 50, NDPS Act, is mandatory in case of search of persona.

Having regard to law of the land, I do not see any reason wherein

a leave is required to be granted from order of acquittal. The

acquittal recorded by learned trial court was necessitated.

In view of non-observance of mandatory provisions of law

there is no illegality in the order passed by learned trial court,

hence, this leave to appeal is liable to be dismissed. Thus, same is

dismissed.

(ASHOK KUMAR JAIN),J

Arun/51