Neutral Citation No. – 2023:AHC-LKO:45684
Case :- CRIMINAL APPEAL No. – 12 of 1999
Appellant :- Liyaqat Ali
Respondent :- State of U.P.
Hon’ble Shree Prakash Singh,J. of Allahabad High Court at Lucknow allowed an appeal preferred under Section 374 of Cr.P.C. against the judgement and order passed by Additional Sessions and District Judge, VIIIth, District Lucknow in wherein, the appellant, Liyaqat Ali, was convicted and sentenced for the offence under Section 8/21 of Narcotics Drugs and Psychotropic Substance Act, 1985, (‘NDPS Act’) for 10 years rigorous imprisonment with fine of Rs. 1,00,000/- and in in addition to the aforesaid sentence, the appellant was also been convicted and sentenced for the offence under Section 25/4 of the Arms Act, 1959 for one year of simple imprisonment.
Facts of the case
The prosecution case in brief is that on 23.03.1994 at 11:45, the appellant/accused was arrested by the Police with a knife as well as 500 gms Smack was recovered from his possession. On being confronted to produce the license of keeping the knife as well as the contraband/smack, the accused-appellant failed to produce any valid document. Recovery memo was prepared on the place of occurrence on the basis of which the First Information Report was made regarding the possession of illegal arm and contraband with the accused-appellant on basis of which the First Information Report was registered and the investigation was carried ,after completing the investigation and on the basis of FSL Report ascertaining that the contraband recovered from the possession of the appellant is Smack, police filed a charge-sheet against the appellant under Section 8/21 of the NDPS Act and under Section 25/4 of the Arms Act.
Counsel appearing for the appellant submitted that the Police has also not complied the mandatory provision of Section 50 of the NDPS Act. And that no public witness was produced despite the said recovery was alleged to be made in a busy public place. It was further submitted that the Police was not carrying any instrument of weighing and there is no explanation as to how the weight of the recovered articles were assessed,the percentage of narcotic substance were not assessed by the chemical analysis in the report
Reliance was placed on the following judgements
1) Vijaysinh Chandubha Jadeja Vs. State of Gujrat, (2021) 1 SCC 609
It was held in Vijaysinh Chandubha Jadeja (AIR 2011 SC 77) (supra) that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate.
Counsel for the respondent State submitted that the statement of prosecution witnesses can not be rejected only on the ground that they are police personnel and there is no illegality in the impugned judgment and order and it is a settled provision of law that only on a solitary testimony of witness, a conviction can be maintained.
The Hon’ble Bench opined that In the present case, the most vital witness of the prosecution, who prepared the recovery memo has not been examined by the prosecution and no explanation has also been given by the prosecution, as to why this star witness has not been examined.
Further it was also observed that the prosecution has failed to prove the compliance of mandatory provision of Section 50 of the NDPS Act. Taking in view of the various judgment by the Hon,ble Apex Court with regard to mandatory compliance of the provision of Section 50, the impugned judgment and order was therefore set aside and the appellant was acquitted.