State Of U.P. vs Rajaram Sahu S/O Sukhnandan Sahu
2023 Latest Caselaw 11532 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 81
 

 
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 190 of 2023
 

 
Appellant :- State of U.P.
 
Respondent :- Rajaram Sahu S/O Sukhnandan Sahu
 
Counsel for Appellant :- Shiv Kumar Pal
 

 
Hon'ble Saumitra Dayal Singh,J.

1. Heard Sri Amit Sinha, learned Additional Government Advocate for the State-appellant on the application under Section 378 (3) Cr.P.C. for leave to appeal.

2. Present leave to appeal has been filed carrying delay of 297 days by the State-appellant under Section 378(3) Cr.P.C., arising from judgment and order dated 07.03.2022 passed by learned Additional Sessions Judge/Fast Track Court-II, Hamirpur, in Special Case No. 01 of 2017 (State of U.P. Vs. Rajaram Sahu), arising from Case Crime No. 202 of 2016, under Section 8/22 NDPS Act, Police Station Muskara, District Hamirpur.

3. By the aforesaid judgment and order, the learned court below has acquitted the accused person Rajaram Sahu on the allegation of possession of narcotics substance without any license.

4. Upon perusal of the record, it transpires, in identity of the offending goods, was not established and compliance of Section 50 of NDPS Act remained to be made, inasmuch as the accused person was first apprehended and searched, thereupon alleged quantity of narcotics substance was recovered from him. Only thereafter he was offered the opportunity to be searched by the Magistrate and or by the Gazetted officer of appropriate description.

5. That critical defect has been duly noted by the learned court below and it has been inferred that the provision of Section 50 of the NDPS Act, 1985, had been violated. Infact the finding of the learned court below is to the effect that the procedure was inverted inasmuch as first the accused person came to be searched and alleged recovery made from him. Only thereafter, the opportunity to be searched in the presence of a Magistrate was granted.

6. Whatever be the other facts, it cannot be overlooked that there is no material to doubt the correctness of the above findings recorded by the learned court below. Being findings based on material and evidence on record, no good ground is shown to offer leave to appeal in the present case which in any case has been filed with the delay of 297 days.

7. Accordingly, the application seeking leave to appeal as well as application seeking condonation of delay in filing the present government appeal are rejected. Consequently, appeal is also dismissed.

Order Date :- 18.4.2023

SA