Uttarakhand High Court
State Of Uttarakhand vs Mohd. Rizwan on 19 February, 2025
Author: Pankaj Purohit
Bench: Manoj Kumar Tiwari, Pankaj Purohit
HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Leave to Appeal No.481 of 2024
With
Government Appeal No.282 of 2024
State of Uttarakhand ........Appellant
Versus
Mohd. Rizwan ........Respondent
Present:-
Mr. K.S. Bora, learned Deputy Advocate General for the
State/appellant.
JUDGMENT
Coram: Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Pankaj Purohit, J.
Hon'ble Pankaj Purohit, J. (Oral)
Delay Condonation Application (IA No.1/2024)
There is delay of 245 days in preferring this
special leave to appeal. In view of the reasons assigned in
the affidavit filed in support of the application, we
condone the delay and allow the application for the
same.
Special Leave To Appeal (481/2024).
2. This special leave to appeal has been preferred
by the State/appellant assailing the judgment and order
dated 18.12.2023, passed by learned Special Sessions
Judge, Champawat in Special Sessions Trial No.45 of
2020, State vs. Mohd. Rizwan, whereby the said court,
after conclusion of trial, has acquitted the
respondent/accused of offence punishable under Section
8/20 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (hereinafter referred to as "the Act, 1985").
3. In nutshell the facts of the case are that on
07.03.2020, informant-S.S.I. Yogesh Dutt accompanied
with police people had departed the police station by
Private Car No. UK06T-9854 for checking of an unknown
person and as soon as they reached at Manihargaud-
Bechai Triha and began to do the checking, then at
about 22:30 hours one motorcycle was seen coming from
towards the Banbasa. When police people asked the
motorcycle driver to stop his vehicle, he at once, turned
the same, but the vehicle was stopped. By using the
necessary police force, the person along with motorcycle
was caught, who disclosed his name as Mohd. Rizwan
(respondent herein). By informing him of his legal rights
under Section 50 of the Act, 1985, he was asked that he
can be searched before any Magistrate/Gazetted Officer.
At about 00:10 a.m. C.O. Tanakpur-Vipin Chandra Pant
came on the spot before whom the search was
conducted. From the bag hanging on the shoulder of
respondent, some black substance was recovered. On
smelling the same, it was found to be charas. When it
was weighed along with the plastic bag it was found to be
4 kg. 456 gms., whereas the empty weight of the
polythene was 16 gm. The accused was accordingly
taken into custody, brought at the police station and the
report was lodged against him. Subsequent thereto, an
Investigating Officer was appointed who conducted
investigation in the matter and on completion of the
same, he submitted the charge-sheet in the court,
whereupon the cognizance was taken by learned Special
Sessions Judge and the case was registered against the
accused under Section 8/20 of the Act, 1985.
4. The prosecution in order to prove its case
examined as many as six witnesses, namely, PW1-SSI
Shri Yogesh Dutt, PW2-Constable Shri Matloob Khan,
PW3-Constable Shri Shakir Ali, PW4-Head Constable
180 C.P. Shri Harvansh Singh Rana, PW5-Head
Constable Shri Vijay Kumar and PW6-Sub-Inspector Shri
Manoj Kumar Singh.
5. Thereafter, the statement of accused-
respondent under Section 313 Cr.P.C. was recorded, in
which, he pleaded false implication. However, he did not
produce any evidence in his defence. The trial court after
hearing the parties and on examination of evidence led
before it proceeded to acquit the respondent-accused as
mentioned in paragraph 3 of this judgment.
6. We have heard learned Deputy Advocate
General appearing for the State and carefully examined
the judgment available on the file. In this matter, the
trial court recorded the finding of acquittal on the ground
that the accused was actually not provided the right of
him being searched before the Gazetted Officer as it was
told to him just an alternative. Moreover, in the recovery
memo, there is no mentioned of the fact as to whether
consent had been given by the accused nor any consent
letter for that purpose was prepared. On such ground as
to on which fact the accused gave his consent, the
recovery memo could not be read into evidence. Thus,
the trial court reached to the conclusion that there was
non-compliance of Section 50 of the Act, 1985.
7. In the recovery memo, the date 8th of March,
2020 has been written appended to the signatures of
police people. The trial court has recorded the finding of
fact that since the occurrence was reported to be of 7th
March then what was the occasion to mention date as 8th
March. Accordingly, the trial court reached to the
conclusion that both the issues i.e. compliance under
Section 50 of the Act, 1985 and proving the case by the
prosecution against the respondent-accused beyond
reasonable doubt, were found to be in favour of the
accused.
8. On all these grounds, the trial court recorded
the findings of acquittal. On a careful perusal of the
same as well as on going through the evidence of
prosecution witnesses as discussed in the body of
judgment, we are of the considered view that there is
hardly any scope of interference in the judgment and
order passed by the trial court. In such view of the
matter, we find no ground to grant leave to appeal to the
State. Resultantly, the leave to appeal application is
dismissed.
Government Appeal No.282 of 2024
9. Since we have in the previous paragraph have
declined to grant leave, as a consequent thereof, the
Government Appeal is liable to be and is accordingly
dismissed.
(Pankaj Purohit, J.) (Manoj Kumar Tiwari,J.)
19.02.2025
AK
