State of U.P. vs Ashok Kumar Soni

This leave to appeal arises out of judgment dated 25.8.2009 passed by Additional Sessions Judge, Court Nos. 5, Pratapgarh in Criminal Case Nos. 23 of 2008 and S.T. Nos. 195 of 2008 recording acquittal of the accused respondents of the offences u/s 8/21/22 of N.D.P.S. Act and Section 413 I.P.C.

We have heard learned State Counsel and perused the materials on record.

As per the prosecution case it appears that on 19.3.2008 when a police party headed by S.O., B.K. Singh, was engaged in checking at platform Nos. 1, the accused-respondent was arrested on suspicion as he tried to run away from the scene of occurrence having noticed presence of police party. On the reason being asked, the respondent disclosed incriminating materials in his possession and further informed the pl;ice that he was carrying two packets of cream biscuits containing narcotic materials and powder of some intoxicating material. It appears that he was made aware his right to be searched before a Magistrate or Gazetted Officer but he refused and reposed confidence on police party and on his search the alleged contraband item said to be 50 gms. Diazapam was recovered. As the same was a non-commercial quantity of contraband, the accused-respondent was challaned and tried upon the aforesaid charges. However, the trial ended in acquittal and that is why the State is before us for leave to appeal.

Learned State Counsel submitted that since contraband item was found in possession of the accused-respondent, the presumption is that he had possessed it illegally and, therefore, the impugned order is perverse. He further submitted that provisions which have been held mandatory for application in the case are, in fact, directly in nature.

We have carefully considered the submissions of learned Counsel for the State and we notice that it is a case of chance recovery. However, as the accused disclosed about the contraband item in his possession, it would become a case of prior information. In such a case, it was obligatory for the police officer to have informed the senior officers about making of disclosure, and the accused about his statutory rights before carrying out the search, therefore, the trial court has rightly held that the compliance of Section 50 has not been made. Similarly, it is not evident from the trial court''s order that any memo was prepared to the effect recording the factum that the accused had expressed his confidence in police officer present on the spot for carrying out his personal search so that it could be said that on being made aware of his right to be searched by a Gazetted Officer or Magistrate the accused had exercised the option to be searched by the police officer present on the spot. Besides, the contraband item in question was taken out from the possession of accused on the search of his person, therefore, it was also obligatory that some Gazetted Officer or a Magistrate should have been requested to be present before carrying out the search. That is why, the trial court has noticed the non-compliance of provisions of Section 50 and 57 of the N.D.P.S. Act.

Besides, the accused was also tried upon u/s 411 and 413 I.P.C. and there is absolutely no evidence to the effect that the accused was found in possession of stolen property or he was habitual in dealing with such property, therefore, the acquittal was rightly recorded on that ground.

We do not find any serious infirmity or perversity in the impugned judgment which may need to be interfered with, in this leave to appeal. Besides, in a catena of decisions, the Apex Court has held that on appreciation of evidence if two views are possible, the one taken in favour of the accused by the trial court should not ordinarily be interfered with and it should be accepted as the probable and reasonable view.

Thus, finding no merit in this application for leave to appeal, it is dismissed.