[Cites 5, Cited by 0]
Uttarakhand High Court
Pappu vs State Of Uttarakhand on 12 February, 2026
Judgment Reserved on: 22.12.2025
Judgment Delivered on: 12.02.2026
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Appeal No.272 of 2007
Pappu ......Appellant
Vs.
State of Uttarakhand .....Respondent
Presence:
Mr. Ramji Srivastava, learned counsel for the Appellant.
Mr. Bhaskar Chandra Joshi, learned AGA for the State.
Hon'ble Ashish Naithani, J.
This Criminal Appeal has been preferred under Section 374 of the
Code of Criminal Procedure against the judgment and order dated 27.06.2007
passed by the learned Sessions Judge, Almora in Special Sessions Trial No. 2 of
2004, whereby the Appellant has been convicted under Section 8/20 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 and has been sentenced
to undergo rigorous imprisonment for a period of three years along with a fine
of Rs. 10,000/-, with default stipulation.
2. This Court has heard Mr. Ramji Srivastava, learned counsel for the
Appellant and Mr. Bhaskar Chandra Joshi, learned AGA for the State, and has
perused the entire lower court record.
3. The case, in brief, is that, a police party allegedly apprehended the
Appellant and, upon search, is stated to have recovered from his possession a
bag containing ganja. It is the case of the state that the recovered contraband
was weighed and its quantity was found to be 20 kilograms.
4. On the basis of the aforesaid alleged recovery, a First Information
Report was lodged against the Appellant and investigation commenced. After
completion of investigation, a charge-sheet was submitted against the Appellant
for the offence punishable under Section 8/20 of the NDPS Act.
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Criminal Appeal No. 272 of 2007, Pappu Vs State of Uttarakhand-
Ashish Naithani J.
5. The Appellant was put to trial before the Court of the Special
Judge/Sessions Judge, Almora in Special Sessions Trial No. 2 of 2004.
6. The learned trial court, after appreciating the evidence on record,
convicted the Appellant under Section 8/20 of the NDPS Act and sentenced him
in the manner indicated above.
7. Aggrieved by the said judgment and order of conviction and sentence,
the present criminal appeal has been filed.
8. The appeal is of the year 2007 and the order-sheet reflects that at
different stages the Appellant remained absent, non-bailable warrants were
issued and bonds were forfeited. Ultimately, in order to ensure that the appeal is
decided on merits, this Court appointed learned Amicus Curiae to assist the
Court, and the appeal has now been finally heard.
9. Learned counsel appearing for the Appellant assailed the impugned
judgment and order of conviction on multiple grounds.
10. It was submitted that the alleged search and recovery is vitiated due to
non-compliance of the mandatory provisions of Section 50 of the NDPS Act,
inasmuch as the Appellant was not informed of his legal right to be searched
before a Gazetted Officer or a Magistrate. It was further submitted that
although, as per the state itself, public persons were available at or near the
place of alleged recovery, no independent public witness was examined by the
state, and the entire case rests only upon the testimony of police personnel. It
was also contended by learned counsel for the Appellant that the State has
failed to establish the case beyond reasonable doubt in respect of the
weighment, sampling, sealing and safe custody of the alleged contraband, and
therefore, the possibility of tampering cannot be ruled out.
11. Learned counsel further submits that the trial court itself has recorded
observations creating doubt about the State version, yet has proceeded to
convict the Appellant, which, according to learned counsel, is legally
unsustainable.
12. It is argued that the burden placed upon the State in cases under the
NDPS Act is very strict, and in the present case, the State has failed to prove its
case in accordance with the mandatory statutory requirements.
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Criminal Appeal No. 272 of 2007, Pappu Vs State of Uttarakhand-
Ashish Naithani J.
13. On the cumulative strength of the aforesaid submissions, it is
contended that the conviction of the Appellant is unsustainable in law and the
Appellant is entitled to be acquitted by giving him the benefit of doubt.
14. Per contra, learned AGA appearing for the State supported the
impugned judgment and order of conviction. It is submitted that the Prosecution
witnesses have consistently supported the recovery and there is no reason to
disbelieve their testimony merely on the ground that they are police personnel.
It is further argued that the recovery has been duly proved, the contraband was
seized, and the state has established its case beyond reasonable doubt. It is also
submitted that the trial court has correctly appreciated the evidence on record
and has rightly recorded a finding of guilt against the Appellant.
15. On these grounds, learned State counsel prays that the appeal be
dismissed.
16. Heard learned counsel for the Parties and perused the records.
17. It needs to be borne in mind at the outset that offences under the
NDPS Act entail severe penal consequences and, therefore, the statute itself as
well as the consistent judicial pronouncements of the Hon'ble Supreme Court
require strict and scrupulous compliance with the procedural safeguards
provided therein.
18. The burden upon the State in cases under the NDPS Act is much
heavier than in ordinary criminal cases. Before the statutory presumptions can
operate, the state must first establish, beyond reasonable doubt, that the search,
seizure and recovery were conducted strictly in accordance with law and that
the sanctity of the seized contraband remained intact from the time of recovery
till its production and examination.
19. One of the principal contentions raised on behalf of the Appellant is
regarding non-compliance of Section 50 of the NDPS Act. Section 50 confers a
valuable right upon a person about to be searched, namely, the right to be
informed that he can be searched before a Gazetted Officer or a Magistrate. The
law in this regard is well settled that this is not an empty formality, but a
substantive and mandatory safeguard.
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Ashish Naithani J.
20. From a perusal of the evidence on record, this Court does not find any
clear, cogent and convincing material to show that the Appellant was made
aware of this legal right in a meaningful manner before the search was
conducted. A mere formal or ritualistic assertion by the police witnesses does
not satisfy the strict requirement of law. The state has failed to establish that the
Appellant was informed that he had a right to be searched before a Gazetted
Officer or a Magistrate and that such right was consciously waived by him.
21. The failure to establish due compliance of Section 50 of the NDPS
Act, in itself, goes to the root of the state case and renders the alleged recovery
legally suspect.
22. Apart from the above, the Court also finds substance in the
submission relating to absence of independent public witnesses. The state case
itself indicates that the alleged recovery was made from a place where public
persons were available. Yet, no independent witness has been examined to
support the search and recovery.
23. It is true that testimony of police personnel cannot be discarded
merely on the ground of their official status. However, in a case under the
NDPS Act, where the consequences are drastic and the statutory safeguards are
stringent, the absence of any independent corroboration, despite availability of
such witnesses, is a circumstance which calls for greater caution and closer
scrutiny.
24. The Court also finds that the state evidence regarding weighment,
sampling, sealing and custody of the seized contraband is not free from doubt.
The link evidence required to establish that the very same contraband, allegedly
recovered from the Appellant, was sent for forensic examination and produced
before the Court in an untampered condition, has not been established with the
degree of certainty required under law.
25. The sanctity of the seized material is the very foundation of a
conviction under the NDPS Act. Any reasonable doubt in the chain of custody
must necessarily enure to the benefit of the accused.
26. A perusal of the impugned judgment also reveals that the learned trial
court itself has noticed certain infirmities and doubtful aspects in the state case,
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Criminal Appeal No. 272 of 2007, Pappu Vs State of Uttarakhand-
Ashish Naithani J.
yet has proceeded to record a finding of guilt. Once the Court finds that the
state version is not free from doubt, the only course open in criminal
jurisprudence is to extend the benefit of doubt to the accused.
27. In criminal law, and more so under a statute like the NDPS Act, the
standard is not one of "may be true" but of "must be true". The state must stand
on its own legs and must establish its case beyond reasonable doubt, strictly in
accordance with law.
28. Having regard to the cumulative effect of:
(i) the failure of the state to establish due compliance of Section 50 of
the NDPS Act,
(ii) the absence of independent public witnesses despite their
availability, and
(iii) the infirmities in the proof regarding safe custody and identity of
the seized contraband,
this Court is of the considered opinion that the state has failed to
prove its case against the Appellant beyond reasonable doubt.The
Appellant, therefore, is entitled to the benefit of doubt.
ORDER
The appeal is allowed.
The judgment and order dated 27.06.2007 passed by the learned Sessions Judge, Almora in Special Sessions Trial No. 2 of 2004, whereby the Appellant had been convicted under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for three years along with fine of Rs. 10,000/-, are hereby set aside. The Appellant is acquitted of the charge under Section 8/20 of the NDPS Act. The Appellant shall be released forthwith, if not required in any other case. The bail bonds, if any, shall stand discharged.
Let a copy of this judgment be transmitted to the court concerned for necessary compliance.
(Ashish Naithani J.) SHIKSHA Digitally signed by SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24b5aa0 8b09c12f21822fbd40bf639b1c, postalCode=263001, BINJOLA SB st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542D7FF0 A9BED00E67B5283D205F18FE29BDF5DD9, cn=SHIKSHA BINJOLA Date: 2026.02.12 15:58:05 +05'30' 5 Criminal Appeal No. 272 of 2007, Pappu Vs State of Uttarakhand-
Ashish Naithani J.