Allahabad High Court
State Of U.P. vs Jitendra Kumar Verma on 6 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 15 Case :- GOVERNMENT APPEAL No. - 1000159 of 2012 Appellant :- State of U.P. Respondent :- Jitendra Kumar Verma Counsel for Appellant :- Govt. Advocate Hon'ble Subhash Vidyarthi,J.
Heard Ms. Jan Laxmi Senani, learned A.G.A. for the State on the application seeking leave to file an appeal under section 378(3), Cr.P.C. against the judgment and order dated 12.9.2012 passed by the learned Addl. Sessions Judge/Special Judge (SC/ST Act), Bahraich, in Sessions Trial No. 1 of 2009 arising out of Case Crime No. 898 of 2008 under section 8/20, the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as 'NDPS Act'), acquitting the accused person of charges of commission of offences under the said case crime number.
Briefly stated, the prosecution case is that on 7.11.2008 the Police received information through an informer (Mukhbir) that a person is sitting near a temple alongwith huge quantity of Charas, kept in a plastic sac. Upon the aforesaid information, a Police party apprehended the respondent, who confessed that he was having 14 Kg. Charas. The Police Party informed him that he has a right to be searched in presence of a Magistrate or a Gazetted Officer, but the respondent stated that he should be searched by the Police. The Police Party conducted a personal search of the respondent and 14 Kg. Charas was found in a plastic sac being carried by him.
A perusal of the judgment under challenge says that the informant stated that a consent-letter under section 50 of the NDPS Act was prepared on the spot before preparation of the arrest-memo, however, the arrest-memo does not make any mention of the consent-letter under section 50 of the NDPS Act. Moreover, in his cross-examination the informant stated that he did not know about the the provisions of section 50 of the NDPS Act. The consent-letter purports to have been prepared on 7.10.2008, whereas the respondent was arrested on 7.11.2008.
PW-2, Constable Shailesh Yadav has stated that only the recovery memo and arrest memo were prepared on the spot and no other document was prepared on the spot.
In view of the aforesaid facts the trial court held that the factum of preparation of a consent-form under section 50 of the NDPS Act before conducting search of the respondent becomes doubtful.
A perusal of the judgment under challenge shows that although the substance was recovered from a bag being carried by the accused person, his personal search was also carried out simultaneously. Section 50 of the NDPS Act is not attracted when substance is recovered in a bag, but in case at the time of recovery of substance the personal search of the accused person is also carried out, in that case compliance of section 50 of the NDPS Act becomes mandatory.
In the case of State of Rajasthan v. Parmanand, (2014) 5 SCC 345, the Hon'ble Supreme Court has held that :- 'If merely a bag being carried by a person is searched, without there being a search of person, section 50 of the NDPS Act will have no application, but if the bag carried by him is searched and his person is also searched, section 50 of the NDPS Act will have application.' As person of the respondent was also searched in the present case, section 50 of the NDPS Act was required to be complied with.
The judgment refers to the statement of prosecution witnesses and upon scrutiny of the statement of PW-2 Constable Sailesh Yadav the court found that the said witness stated that only recovery memo and arrest memo were prepared on spot and no other document was prepared there. Statement of PW-2 indicates that consent-form under section 50 of the NDPS Act was not prepared on the spot, indicating that the mandatory provision of section 50 of the NDPS Act has not been followed in the present case.
The learned trial court has rightly held that non-mention of preparation of consent-letter under section 50 of the NDPS Act in the arrest-memo, the statement of the informant in his cross-examination that he was not aware about the provisions of section 50 of the NDPS Act and the statement of P.W.2 that only the recovery-memo and the arrest-memo were prepared on the spot and no other document was prepared there, establish that the provisions of section 50 of the NDPS Act had not been complied with in the present case.
The trial court has rightly held that the failure of the prosecution to comply with the mandatory provision section 50 of the NDPS Act vitiates the prosecution case and the prosecution has failed to prove its allegations against the accused person beyond reasonable doubt.
I find no such apparent illegality in the judgment under challenge as may warrant grant of leave to the State to file appeal against the said judgment. The leave application is accordingly rejected. As a consequence thereof the appeal also stands dismissed..
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(Subhash Vidyarthi, J.) Order Date :- 6.1.2023/A.Nigam