Allahabad High Court
State Of U.P. vs Munna @ Pachaiya on 16 July, 2021
Bench: Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 76
Case :- GOVERNMENT APPEAL No. - 6746 of 2006
Appellant :- State of U.P.
Respondent :- Munna @ Pachaiya
Counsel for Appellant :- Govt. Advocate
Hon'ble Subhash Chandra Sharma,J.
Heard learned A.G.A. for the State and perused the record.
In this appeal accused Munna @ Pachaiya has been acquitted of the charge under Section 20 (B) (II) and Section 21 of N.D.P.S. Act by the Additional Sessions Judge, Court No.9, Kanpur Dehat.
250 gms smack was alleged to have been recovered from the possession of the accused.
Learned A.G.A. submitted that learned trial court has committed material irregularity and illegality in passing the impugned judgment. It has been passed only on the technical grounds that no police departure from the police station has been shown. No compliance of provisions of Section 55 & 57 of the Act has been done. There is no independent evidence and investigation was conducted by an officer of lower rank. Learned trial court has not taken in view the fact of recovery of 250 gms smack from the possession of accused and also the fact that no one becomes ready to be a witness against the accused persons. In this way, the impugned judgment is beyond the legal propriety and perverse, therefore, leave be granted for appeal.
From perusal of record, it shows that learned trial court has considered all the facts and circumstances of the case. Under N.D.P.S. Act the punishment is harder likewise compliance of provisions of the Act is also very strict. Officers are bound to comply the provisions of the Act in very strict manner. Provisions of Section 55 and 57 of the Act have not been complied with by the officers concerned, this fact has also been taken in view by the learned trail court. As per the provisions of Section 55 of the Act officer making recovery from the possession of the accused is required to hand over the recovered article to the officer in-charge who will affix a seal on it but no such compliance was done. Likewise under Section 57 of the Act when accused is arrested and recovery is made it is to be reported within 48 hours to the higher authority but no such report was prepared by the officer and was not sent to the higher authority.
Prosecution could not prove before the trial court as to where recovered article was kept. Mallkhana register was also not produced before the court in this regard. Sample was also sent for examination to F.S.L. after 21 days from the incident which was too delay. No explanation was given by the prosecution in this regard. In addition to this, sample was sent to F.S.L. on 19.02.2004 but Exibit Ka-8 test report revealed that it was received on 16.02.2004 in F.S.L. It is 3 days before the date of sending it for examination. No explanation was given in this regard by the prosecution. Charas weighing 250 gms and smack 5-6 gms was recovered from the possession of accused but it was found, 230 gms and 4 gms respectively in the F.S.L. In these facts and circumstances, it appears that the judgment and order passed by learned Additional Sessions Judge is lawful and there is no any kind of perversity. Therefore, no ground exists to grant leave for appeal.
Application to grant leave for appeal is, hereby, rejected.
Consequently, the appeal is also dismissed.
Order Date :- 16.7.2021
Ashok Gupta
