State Of Uttarakhand vs Satpal

S.K. Mishra, 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).

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.

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.

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.

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.

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.

Let a copy of this judgment along with TCRs be sent back to the trial court for forthwith.