Husaini vs State Of U.P.
2017 Latest Caselaw 6094 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 10.10.2017
 
Delivered on 01.11.2017
 
Court No. - 13
 

 
Case :- CRIMINAL APPEAL No. - 201 of 1996
 

 
Appellant :- Husaini
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- S.S. Tripathi,Pradeep Kumar,S.S. Tewari
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Dinesh Kumar Singh-I,J.

1. This criminal appeal has been directed against the judgment and order dated 01.02.1996 of Sessions Judge/Special Judge, Maharajganj whereby he had convicted the accused-appellant Husaini and had sentenced him under Section 8/20 of N.D.P.S. Act, 19851 with R.I. of two years and fine of Rs.2,000/- and in default of payment of fine six months additional imprisonment.

2. The facts of the case in brief are as follows:

3. A police party headed by S.H.O., P.S. Shyam Deurawa, Sri Rajesh Kumar Dwivedi (P.W.-2) alongwith constables Sunil Kumar Misra, Jagdish Prasad and homeguard Rajendra Prasad were busy in maintenance of the law and order in Village Barahra. They were travelling in a jeep being driven by driver Laxman Prasad. When they reached Village Barahra, Sub-Inspector Narendra Pratap Singh (P.W.-1), constable Aftab Ahmad and constable Surendra Singh also joined them while on patrol duty. At that very time an informer gave them news that in Village Mohanapur, one person was selling Ganja which was kept in a bag, if promptly reached, he could be arrested. Believing that information, Sri Rajesh Kumar Dwivedi reached near Village Mohanapur and found a man sitting on a culvert who was surrounded by few persons. Having seen police these persons fled from there and the suspect also started to flee right then; at about twenty steps from that place, he was arrested. On being cought he disclosed his name to be Husaini, resident of Mohanapur, P.S. Shyam Deurawa, District Maharajganj. Upon search being made, 500 grams of Ganja was recovered from a plastic bag being carried by him in his hand which consisted ten pudias of 50 grams each. On being enquired as to whether he had authorisation to sell Ganja, he prayed to be excused for this fault. Thus, on his admission of the guilt/offence, he was arrested under Section 20 of the Act after being apprised that he had committed an offence under the said Act by selling the said Ganja. The alleged recovered Ganja was taken into custody by police and was kept in a bag and after taking out 50 grams out of it by way of sample it was sealed and the said sample was also sealed separately and sample of the seals were also prepared. The recovery memo was written on the spot which was read out to the accused-appellant and thereafter the signatures of all concerned were obtained thereon. A copy of this recovery memo was also provided to the accused. Thereafter the accused alongwith recovered contraband was taken to the police station Shyam Deurawa, where on the basis of the same, F.I.R. (Ex. Ka-2) was registered on 05.04.1993 at 06:45 p.m.; formal Chick F.I.R. (Ex. Ka-2) was also prepared; an entry was made in G.D. (Ex. Ka-3). The case was handed over to Investigating Officer, S.O., Sri Khalid Nasim (P.W.-3), who after making inspection of the spot, prepared site plan (Ex. Ka-5). The sample of Ganja was sent for examination to Forensic Science Laboratory, Lucknow2, from where a report (Ex. Ka-6) was received confirming that the same was found to be Ganja. Thereafter the Investigating Officer having completed the investigation submitted chargesheet (Ex. Ka-4) against the accused-appellant in Court.

4. The accused was charged under Section 8/20 of the Act, to which he pleaded not guilty.

5. For establishing the charge against the accused the prosecution examined eye-witness, S.I. Sri Narendra Pratap Singh, who was accompanied by Sri Rajesh Kumar Dwivedi, S.H.O., P.S. Shyam Deurawa at the time of occurrence and this witness has proved recovery memo (Ex. Ka-1), Chick F.I.R. (Ex. Ka-2) and G.D. report (Ex. Ka-3); the main eye-witness, S.H.O. Sri Rajesh Kumar Dwivedi, under whose leadership the said recovery of illegal Ganja was made, as P.W.-2. This witness has proved the recovery memo (Ex. Ka-1) and the recovered Ganja (material Ex.-1). Sri Khalid Nasim, S.I., P.S. Shyam Deurawa has been examined as P.W.-3 who has investigated this case and has proved site plan (Ex. Ka-5), charesheet (Ex. Ka-4). Besides above, the chemical examination report (Ex. Ka-6) appears to have been taken on record under Section 293 Cr.P.C., and hence, has been exhibited as Ka-6.

6. Thereafter, the prosectuion evidence was closed and the statement of the accused was recorded under Section 313 Cr.P.C., wherein he stated that he has been falsely implicated. In defence, it is stated that he belonged to Village Mohanapur, P.S. Shyam Deurawa, District Maharajganj; on 05.04.1993 at 05:00 p.m. no Ganja was recovered from him; the police has arrested him from his house and has falsely implicated in this case.

7. The court below after having analysed all the statements of the witnesses of the prosecution and taking into consideration the documentary evidence on record has found the case against the accused appellant proved under Section 8/20 of N.D.P.S. Act and, hence awarded him the above mentioned punishment.

8. Learned counsel for the appellant, Sri S.S. Tripathi has opened his arguments by saying that the accused-appellant by now has attained the age of 80 years, hence he is extremely old. The recovery of the said Ganja was not proved on the basis of evidence on record. The compliance of the provisions of Section 50 of N.D.P.S. Act has not been made because while conducting personal search of the accused, no option was given to him for being searched before a Magistrate/Gazetted Officer and has relied upon the law laid down in State of Rajasthan Vs. Parmanand & another (2014) 5 SCC 345. Accordingly, it is argued that the judgment of the lower court should be set aside and accused-appellant should be acquitted. Learned counsel for the appellant has also relied upon the law laid down in Dilip & another Vs. State of M.P. (2007) 1 SCC 450. It is also argued that the recovered Ganja was not weighed on the spot.

9. In rebuttal, learned AGA has stated that Section 50 of the Act would not be applicable in the case at hand because the recovery of Ganja has been made not from the person of the accused-appellant rather the same has been made from the bag he was carried. No prejudice is caused by not weighing the recovered Ganja, hence no benefit can be coferred by the accused-appellant of the lapse on the part of the prosecution in this regard.

10. First of all it would be proper to take up the ground which is mainly pressed by learned counsel for the appellant, which relates to non-compliance of the provision of Section 50 of the Act.

11. It would be pertinent to reproduce Section 50 of the Act for the sake of convenience which reads as follows:

"50. Conditions under which search of persons shall be conducted. - (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974)

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."

12. In large number of cases the Supreme Court has enterpreted provision mentioned above and now the law is almost settled by pronouncement made in Vijaysinh Chandubha Jadeja Vs. State of Gujrat (2011) 1 SCC 609. In this case the question before the Apex Court for consideration was "whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") casts a duty on the empowered officer to 'inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section?"

13. The answer to this question has been given in paras 29 to 32 of the judgment which are reproduced as follows:

"29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.

30. As observed in Presidential Poll, In re: (SCC p. 49, para 13);

"(13). ... It is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. 'The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole.'"

31. We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said section in Joseph Fernandez and Prabha Shankar Dubey is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh case. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.

32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of (1974) 2 SCC 33 the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."

14. From a perusal of the above view of the Supreme Court, it is apparent that the compliance of the provisions under Section 50 of N.D.P.S. Act is not a mere formality. It has to be done by the empowered officer in letter and spirit. Whether or not the procedure prescribed had been followed and the said requirement of Section 50 of the Act has been made, has to be judged on the basis of evidence recorded during the trial. Hence, it would be pertinent to scrutinize the relevant portions of the statements of witnesses in connection with the fact as to whether the accused in the present appeal had been apprised by the arresting officer of his right or not that he could opt to be searched in front of a Magistrate/Gazetted Officer.

15. A perusal of the recovery memo would show that the accused is alleged to have been arrested at 05:00 p.m. on 05.04.1993, persuant to information given by informer about his location. It is not mentioned in the recovery memo as to when the information about accused-appellant indulging in sale of illegal Ganja was received by police. However, time of arrest is recorded as 05:00 p.m. Before his arrest, he was apprised about the right that he could opt to be searched in presence of a Gazetted Officer/Magistrate has not been recorded in recovery memo.

16. P.W.-1, Narendra Pratap Singh has also stated in examination-in-chief that accused-appellant was arrested with 500 grams of illegal Ganja, recovery memo of which was prepared on the spot by S.H.O. Rajesh Kumar Dwivedi (P.W.-2) in his presence, but he has nowhere stated that the accused-appellant was apprised that he had a right to be searched before a Gazetted Officer/Magistrate, however in cross-examination, he has simply stated that the S.H.O. had enquired from him about his search being made. Even this reply does not clarify whether he was told about his right to be searched before a Gazetted Officer/Magistrate. P.W.-2 Rajesh Kuamr Dwivedi has also not mentioned in examination-in-chief that the accused-appellant was told that he had a right to be searched before a Gazetted Officer/Magistrate, however in cross-examination he has stated that he had not recorded in the recovery memo that he had spoken to the accused-appellant that he could be searched before a Gazetted Officer/Magistrate. Further he has stated that he had given his statement to the Investigating Officer that he (accused) was apprised that he could opt to be searched in presence of a Gazetted Officer but he could not tell the reason as to why the said statement is not found to have been recorded by the Investigating Officer in his statement given under Section 161 Cr.P.C. The S.O., Sri Khalid Nasim (P.W.-3) in this regard has stated that whatever was stated by the witness, was recorded by him. If there was no mention made by the witness in his statement about the Gazetted Officer, the same may not have been stated.

17. In view of the above statements of the witnesses and the facts recorded in the recovery memo, it transpires that the accused-appellant was not apprised by the arresting police party that he had a right under law (under Section 50 of N.D.P.S. Act) to opt for being searched before a Gazetted Officer/Magistrate, which is a mandatory provision which would have adverse effect on the accused-appellant being held guilty.

18. During the argument made in rebuttal by the learned AGA it emerged that in the case at hand the provisions of Section 50 of the Act would not be applicable because those provisions were applicable only when a personal search of the accused is required to be made, because in the said section the words used are "any person". Here in this case the contraband Ganja was recovered from the bag which was being carried by the accused and not from his person. It was further argued that even if personal search was made but no contraband was found from the person of the accused-appellant, but the same was found from a bag or attache or some other article being carried by him, the provisions of Section 50 of the Act would not be applicable.

19. This argument has been rebutted by learned counsel for the appellat by relying upon the law laid down by the Supreme Court in Dilip & another Vs. State of M.P. (supra). Attention is drawn of the Court towards paras 12 and 16 of the judgment which are as follows:

"12. Before seizure of the contraband from the scooter, personal search of the appellants had been carried out and, admittedly, even at that time the provisions of Section 50 of the Act, although required in law, had not been complied with.

.................

16. In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done."

20. The other case relied upon by the learned counsel for the appellant is State of Rajasthan Vs. Parmanand & another (supra). Attention is drawn of the Court towards paras 15 of the judgment which is as follows:

"(15) Thus, if merely a bag carried by a person is searched without there being any search of his 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. In this case, Respondent 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of Respondent 2 Surajmal was also conducted. Therefore, in the light of the judgment of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application."

21. On this point the Supreme Court has further made clear the position of law in State of Himachal Pradesh Vs. Pawan Kumar 2005 (52) ACC 710 before which the matter came up for consideration in view of difference of opinion between two learned Judges who heard the appeal, the matter had been placed before this larger bench and the question for consideration was "whether the safeguards provided by Section 50 of the N.D.P.S. Act regarding search of any "person" would also apply to any bag, briefcase or any such article or container etc., which is being carried by him."

22. The answer to this question has been given in paras 9 to 11 of this judgment which are quoted below:

"9. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases, search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section, it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad commonsense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word "person" appears to be- "the body of a human being as presented to public view usually with its appropriate coverings and clothings". In a civilized society, appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.

10. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.

11. An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. While making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the word "search of person". One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. Some indication of this is provided by Sub-section (4) of Section 50 of the Act, which provides that no female shall be searched by anyone excepting a female. The legislature has consciously made this provision as while conducting search of a female, her body may come in contact or may need to be touched and, therefore, it should be done only by a female. In the case of a bag, briefcase or any such article or container, etc., they would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. They can be easily and in no time placed away from the body of the carrier. In order to make a search of such type of objects, the body of the carrier will not come in contact of the person conducting the search. Such objects cannot be said to be inextricably connected with the person, namely, the body of the human being. Inextricable means incapable of being disentangled or untied or forming a maze or tangle from which it is impossible to get free."

23. From above, it is apparent that when the principle of personal search would apply it would involve search of the body of human being as presented to public view usually with its appropriate coverings and clothings and not any briefcase, bag, container etc., which a person carries with him because these articles are not inextricable from his person.

24. In view of above position of law, it is apparent that in the case at hand the bag which the accused-appellant was carrying, was not inextricable part of his body, hence it should not be covered under personal search, but in view of the law laid down in subsequent rulings in Dilip's case and Parmanand's case, if personal search is also made with the search of the article being carried by the accused-appellant, the provisions of Section 50 of the Act would be applicable. Therefore, in the case at hand Section 50 of the Act would be applicable which has not been followed in letter and spirit by the prosecution by disclosing to him his legal right to be searched before a Gazetted Officer/Magistrate as is apparent from the evidence which has been taken into consideration above.

25. The other objection which has been raised by the learned counsel for the appellant is that the contraband Ganja allegely recovered from the accused was not weighed which is detrimental to the case of the prosecution. In this regard, in recovery memo, it has been mentioned that in the plastic bag being carried by the accused in right hand 500 grams of the Ganja was recovered in the form of 10 pudias of 50 grams each, licence of possessing which he did not have. It is also mentioned that out of that bag approximately 50 grams Ganja was taken out as sample and was sealed separately and a sample of seal was also prepared. In this regard P.W.-2 has stated in examination-in-chief that on being arrested, from accused-appellant 500 grams of Ganja and 10 pudias of Ganja were recovered while in cross-examination he has stated that the said recovered Ganja was not presented before him in Court at the time of his statement and even sample seal was not found on the file. Regarding this P.W.-2 has stated in examination-in-chief that in the bag being carried by the accused-appellant in hand, 500 grams of Ganja and 10 pudias were recovered. While in cross-examination this witness has stated that the said recovered Ganja was not weighed; on conjecture the said entry was made in the recovery memo. Further it is stated that in recovery memo he had mentioned that 500 grams of Ganja was recovered which included 10 pudias, each weighing 50 grams but today he has stated that he had told the weight to be 500 grams and 10 pudias which were recovered from the accused-appellant. These 10 pudias were included in 500 grams of Ganja. Nothing has been stated by P.W.-3 (Investigating Officer) in this regard.

26. From the aforsaid statements with regard to weighing of the alleged recovered Ganja it is clear from the evidence on record that the same was not weighed by the police party which alleges to have recovered the same from the accused-appellant and whatever quantity of Ganja is being alleged to have been recovered, seems to be based on their conjecture which is admitted by P.W.-2 in his statement in cross-examination. The benefit of this lapse, left by prosecution in their case, would go to the accused-appellant.

27. Now it would be pertinent to refer to the findings of the lower court on important aspects. With regard to the sample seal not being presented before the Court, the argument made before the court below, was that it was not proved that the sample of the seal and the recovered Ganja were properly sealed nor was it established that till the date of examination by the F.S.L. the said sample was kept in sealed condition properly. In support of the said argument reliance was placed upon State of Rajasthan Vs. Gopal (1998) 8 SCC 449 in which it was held that in a case where sample is sent for being tested to F.S.L., the burden rests on the prosecution to prove beyond doubt that the sample was sealed and the same was kept intact and the same was also presented for testing in intact condition. In the case at hand it is doubtful that the sample of seal was kept intact, hence accused-appellant should get its benefit.

28. The court below did not find the above argument appealing, stating that the facts of that case were different from the present case. In the present case, the prosecution has proved beyond reasonable doubt that the recovered Ganja was sealed on the spot. Investigaring Officer had also seen the said Ganja in sealed condition which was placed in sealed condition. From the chemical examination report (Ex. Ka-6) dated 16.06.1993, it was established that the said sample was received by them in proper sealed condition, which was tested by them. The chemical examination report (Ex. Ka-6) was sent on 16.06.1993 according to which the said sample was found to be Ganja which was recovered from the accused.

29. Another argument which was made by learned counsel for the accused-appellant before the lower court was that on the sealed bundle, witnesses were not asked to put their signatures which would lead to said recovery being doubtful but the said argument was also turned down saying that the witnesses had put their signatures on the recovery memo and that on the sealed bundle, signature of Investigating Officer was found at the time of chemical examination test.

30. The above finding of the court below does not appear confidence inspiring because it is not made absolutely clear as to how the total Ganja allegedly recovered from the accused-appellant was weighed and thereafter before its being sealed, how much quantity (giving wieght of the same), was taken out for sample and how both these quantities i.e. the total recovered Ganja excluding the sample, was sealed and its sample of its seal was made and also how the sample taken was separately sealed and the sample of its seal was separately made. All these details have been mentioned, neither in recovery memo nor in statements of the witnesses of fact. Since the punishment awardable for an offence under Section 50 of the Act is stringent, it was absolute duty of the prosecution to take all precautions beyond doubt that Ganja recovered from the accused, after taken out the sample, should have been separately sealed with also mentioning weight of it and the sample of its seal should have been kept intact. Similarly the sample taken of it, to be sent to the F.S.L., should have been separately sealed and sample of its seal should have been kept intact separately and both these separately sealed items should have been exhibited as material exhibits, which has not been done in the present case. It was important that from the time the contraband was recovered, till a quantity out of it was taken out for being sent to F.S.L. for being tested, the entire steps taken/procedure followed should have been mentioned in black and white in recovery memo and the same should have been proved by statements of witnesses of fact also, who had recovered the same from the accused-appellant and had sealed the same. The F.S.L. also ought to have mentioned in its report the total quantity of the contraband sample received by them for being tested and the same should have been returned with report after the test with their own seal which could be opened before court, when required. All this has not been done, hence the finding of the lower court in regard to the contraband Ganja having been sealed on the spot properly does not inspire confidence and seems erroneous.

31. It is not established beyond reasonable doubt that the contraband Ganja as well as the contraband sample were separately sealed properly and were kept intact in safe custody. It is also not clear as to whether the samples of their seals were also kept safely. Further it is also made clear that when the sample contraband was tested, it was returned with seal of the F.S.L., which was opened before court at the time of recroding of statement of witnesses. All this would lead to suspicion with regard to the contraband allegedly recovered from the accused-appellant being a contraband (Ganja) of the quantity (not known). The benefit of this will go to the accused-appellant.

32. In view of the other infirminty noticed by this Court, this Court is of the view that the judgment and order of the court below dated 01.02.1996 needs to be set aside and the accused-appellant deserves to be acquitted of charges under Section 8/20 of the Act. Since the accused-appellant is on bail during the pendency of appeal, his personal bonds are cancelled and sureties are discharged.

33. The case property/alleged recovered contraband (Ganja) be destroyed in accordance with rules after the period of appeal, provided if any, expires.

Order Date :- 1.11.2017

Shahroz