GA/368/2007
2022 Latest Caselaw 1574 UK

           IN THE HIGH COURT OF UTTARAKHAND
                             AT NAINITAL
                        SRI JUSTICE S.K. MISHRA, A.C.J.

           GOVERNMENT APPEAL NO. 368 OF 2007

                             21ST MAY, 2022

BETWEEN:

State of Uttarakhand                                         ....Appellant.
And

Satpal                                                       ....Respondent.

Counsel for the Appellant : Mr. J.S. Virk, learned Deputy Advocate General for the State.

Counsel for the Respondent : Mr. Lalit Belwal, learned counsel.

Upon hearing the learned Counsel, the Court made the following

JUDGMENT :(per Sri S.K. Mishra, A.C.J.)

This is an appeal against the judgment of acquittal

dated 22.09.2003 recorded by the learned Additional

Sessions Judge, Fast Tract Court, Tehri Garhwal in Special

Sessions Trial No.07 of 2000. The sole respondent was

charged under Section 20/21 of the Narcotics Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as

"NDPS Act" for brevity) for having been in possession of 70

grams of contraband substance (charas).

2. The case of the prosecution, in short, is that on

08.05.2000, when the police party was in patrolling duty

under the leadership of the Station House Officer, Muni-ki-

Reti, namely Mr. Vinod Chauhan, got information from the

police informer that two persons carrying smack and charas

were to reach the bus parking, Kailash Gate. Then the police

party proceeded to the spot and apprehended the

respondent. On his personal search, the police party found 70

grams of charas from his possession. However, no smack was

found. Thereafter, the Investigating Officer started

investigation, and after completion of the investigation, he

submitted the charge-sheet. The prosecution examined four

witnesses in this case, and relied upon several exhibits.

3. In the course of trial, the defence took the plea that

there has been non-compliance of Section 50 of the NDPS Act

in the sense that the personal search of respondent was

conducted in the presence of an officer of the police

department of the rank of Deputy Superintendent of Police,

but the respondent was never informed about his rights to be

searched either before the Magistrate, or before the Gazetted

Officer. Simply the Gazetted Officer was called, and the

personal search of the respondent was undertaken. The

learned Additional Sessions Judge held that the respondent

has a right to be informed about his option either to be

searched before the Magistrate, or before the Gazetted

Officer, and that having not done so, there is a violation of

the provisions of Section 50 of the NDPS Act. The provisions

of Section 50 of the NDPS Act are mandatory in nature during

the course of investigation and trial, and that he acquitted the

respondent for the alleged offence.

4. Mr. J.S. Virk, the learned Deputy Advocate General

appearing for the State, would argue that under the

circumstances that since the police patrolling party took the

personal search of the respondent, Section 50 of the NDPS

Act would not be attracted. However, Mr. Lalit Belwal, the

learned counsel for the respondent, would argue that in a

simple cause case where the police patrolling party dealt with

the office under the provisions of the NDPS Act having no

prior information about the commission of crime under the

aforesaid Act, and in search, contraband material are seized

from the accused, then only Section 50 of the NDPS Act will

not be attracted, but this case is factually different as it is the

very case of the prosecution that the patrolling party under

the leadership of the SHO got information that certain

persons are moving with contraband articles. Hence, Section

50 of the NDPS Act will be attracted. Therefore, Mr. Lalit

Belwal, the learned counsel, would argue that there is no

substantial and compelling reason to interfere with the

judgment of acquittal passed by the learned Additional

Session Judge.

5. Having considered the facts of the case, this Court

is of the view that it is the case of the prosecution that while

the police party was on patrolling duty, they received the

information regarding the commission of crime, and

possession of contraband by some unknown persons, who

were to reach the bus station, and therefore, the personal

search of the respondent was taken. Hence, it is the

considered opinion of this Court, in such case, where the

police officials were having prior information about the

commission of crime for having the possession of contraband,

then the provisions of Section 50 of the NDPS Act would be

squarely application, and therefore, the learned Additional

Sessions Judge was not in error in holding that there has

been a violation of Section 50 of the NDPS Act, and therefore,

the respondent was found entitled to acquittal, and therefore,

acquitted.

6. In order to overturn the judgment of acquittal, the

Court must record sufficient substantial and compelling

reasons. The general principle of innocence till proven guilty

becomes fortified by the judgment of acquittal recorded by

the learned Trial Judge. Hence, keeping in view this principle,

this Court is of the view that it is not a fit case where the

judgment of acquittal should be overturned. Hence, the

appeal is dismissed being devoid of any merit.

7. Let a copy of this judgment along with TCRs be

sent back to the trial court for forthwith.

(S.K. MISHRA, A.C.J.)

Dated: 21st May, 2022 NISHANT