Allahabad High Court
State Of U.P. vs Narendra Kumar Maurya on 6 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 15 Case :- GOVERNMENT APPEAL No. - 1000160 of 2012 Appellant :- State of U.P. Respondent :- Narendra Kumar Maurya Counsel for Appellant :- Govt. Advocate Hon'ble Subhash Vidyarthi,J.
Heard Sri Diwakar Singh, learned A.G.A. on the application under section 378(3), Cr.P.C. seeking leave to appeal against the judgment and order dated 11.10.2012 passed by the Addl. Sessions Judge, Court No. 2, District Barabanki acquitting the respondent of charges under section 8/21, the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as ' NDPS Act'), P.S. Badosarai, District Barabanki.
As per the allegation contained in the aforesaid judgement, on 15.7.2008 at about 2.30 pm the Police Party apprehended the respondent on the basis of information received from a Mukhbir and during his personal search 260 gms Morphine was recovered from the pocket of the pants worn by him.
The judgement mentions that the original recovery memo available on the record states that upon being apprehended the respondent stated that he used to consume Morphine and he was having 260 gms. Morphine. The SHO told the respondent that his search will be conducted by a Magistrate or by a Gazetted Officer, whereupon the respondent stated that he did not want to be taken to any other person for creating further evidence and the SHO himself should conduct his search. The trial court observed that the recovery memo does not mention that it was told to the respondent that he had a right under section 50 of the NDPS Act to get himself examined before a Magistrate or a Gazetted Officer. The consent letter prepared under section 50 of the NDPS Act was also available on record and in that also merely this much was stated that the SHO told the respondent that his search would be conducted by some Magistrate or a Gazetted Officer and it does not contain a mention that the respondent had been informed that under section 50 of the NDPS Act he had a right to be searched before a Magistrate or a Gazetted Officer.
The Trial Court has relied upon a decision of Hon'ble the Supreme Court in the case of State of Punjab v. Baldev Singh, (1998) 2 SCC 724, wherein the Hon'ble Supreme Court has held that before conducting search of a person it is incumbent upon the authorised officer to inform the person concerned that he has a right under section 50(1) of the NDPS Act to be searched in presence of a Magistrate or a Gazetted Officer.
The learned Court Below relied upon a decision in the case of State of Delhi v. Raj Avtar, 2011 CrLJ 4321 SC, wherein the Hon'ble Supreme Court has held that it is a well established principle of Criminal Jurisprudence that wherever any provision has been made favouring the accused, that provision has to be strictly adhered to.
In the present case from the averments made in the recovery-memo as also in the consent-letter prepared under section 50 of the NDPS Act it transpires that the provisions of section 50 of the ndps Act has not been complied, as the respondent was not made aware about his right to get examined in the presence of a Magistrate or a Gazetted Officer.
The learned Court Below has also highlighted discrepancies in the statements of PW-4 and PW-6 regarding entries made in the records regarding the deposition of the substance recovered, which create doubt about the prosecution case and has held that it is not established that the sample had been collected from the substance that was recovered from the respondent.
The judgement of the Trial Court is a well reasoned judgement and there appears to be no error or illegality in it. I find to reason to grant leave to the State to file an appeal against the aforesaid judgement and order. The leave-application is accordingly rejected.
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(Subhash Vidyarthi, J.) Order Date :- 6.1.2023 A.Nigam