LexARIF KHAN @ AGHA KHAN versus STATE OF UTTARAKHAND
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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ARIF KHAN @ AGHA KHAN
v.
STATE OF UTTARAKHAND
(Criminal Appeal No. 273 of 2007)
APRIL 27, 2018
[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985 –
ss.20 and 50 – Non-compliance of s.50 – Prosecution case that
Police raided appellant-accused and on search found contraband
article “Charas” weighing around 2.5 Kg in quantity from his body
– Trial Court convicted u/s. 20 of the NDPS Act – Conviction
confirmed by the High Court – Appellant-accused contended that
the prosecution failed to ensure mandatory compliance of s.50 of
the NDPS Act – Held: In order to make the search and recovery of
the contraband articles from the body of the suspect, the search
and recovery has to be in conformity with the mandatory
requirements of s.50 of the Act – In instant case, appellant was not
produced before any Magistrate or Gazetted Officer as envisaged
in s.50 – Thus, prosecution was not able to prove that search and
recovery of the contraband made from the appellant was in
accordance with the procedure prescribed u/s.50 of the NDPS Act
– Therefore, the appellant entitled to claim its benefit to seek his
acquittal.
Allowing the appeal, the Court
HELD: 1. In order to make the search and recovery of the
contraband articles from the body of the suspect, the search and
recovery has to be in conformity with the requirements of Section
50 of the Narcotic Drugs and Psychotropic Substances Act, 1985
Act. It is, therefore, mandatory for the prosecution to prove that
the search and recovery was made from the appellant in the
presence of a Magistrate or a Gazetted Officer. Though, the
prosecution examined as many as five police officials (PW-1 to
PW-5) of the raiding police party but none of them deposed that
the search/recovery was made in presence of any Magistrate or
a Gazetted Officer. [Paras 28 and 29] [793-E-F]
[2018] 6 S.C.R. 787
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SUPREME COURT REPORTS
[2018] 6 S.C.R.
2. The prosecution was not able to prove that the
search and recovery of the contraband (Charas) made from the
appellant was in accordance with the procedure prescribed under
Section 50 of the NDPS Act. Since the non-compliance of the
mandatory procedure prescribed under Section 50 of the NDPS
Act is fatal to the prosecution case and, in instant case, the
prosecution has failed to prove the compliance as required in
law, the appellant is entitled to claim its benefit to seek his acquittal.
[Para 30] [793-G-H; 794-A]
Vijaysinh Chandubha Jadeja v. State of Gujarat
(2011) 1 SCC 609 : [2010] 13 SCR 255 – relied on.
State of Punjab v. Baldev Singh (1999) 6 SCC 172 :
[1999] 3 SCR 977 ; Ashok Kumar Sharma v. State of
Rajasthan (2013) 2 SCC 67 : [2013] 1 SCR 236 ;
Narcotics Control Bureau v. Sukh Dev Raj Sodhi
(2011) 6 SCC 392 : [2011] 6 SCR 974 - referred to.
Case Law Reference
[2010] 13 SCR 255
relied on
Para 14
[1999] 3 SCR 977
referred to
Para 21
[2013] 1 SCR 236
referred to
Para 23
[2011] 6 SCR 974
referred to
Para 23
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 273 of 2007.
From the Judgment and Order dated 26.06.2006 of the High Court
of Uttaranchal at Nainital in Criminal Appeal No. 368 of 2004.
J.C.Gupta, Sr. Adv., Anurag Tomar, Vikrant Singh Bais,
Rameshwar Prasad Goyal, Advs. for the Appellant.
Ashutosh Kumar Sharma, Jatinder Kumar Bhatia, Advs. for the
Respondent.
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The Judgment of the Court was delivered by
ABHAY MANOHAR SAPRE, J. 1. This appeal is filed by the
accused against the final judgment and order dated 26.06.2006 passed
by the High Court of Uttaranchal at Nainital in Criminal Appeal No.368
of 2004 whereby the High Court confirmed the judgment and order dated
09.11.2004 passed by the Additional Sessions Judge, Fast Track Court
II, Udham Singh Nagar in Special Sessions Trial No.20 of 2003 by which
the appellant-accused was convicted for the offence punishable under
Section 20 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (hereinafter referred to as “the NDPS Act”) and sentenced him to
undergo rigorous imprisonment for 10 years and a fine of Rs.1,00,000/-.
2. In order to appreciate the issue involved in the appeal, few
facts need to be mentioned hereinbelow.
3. In short, the case of the prosecution is as under:
4. On 23.11.2002, a secret information was received in P.S. Kichha
from one unknown informant that one person is travelling in a roadways
bus carrying with him some contraband articlExcerpt shown. Read the full judgment & AI analysis in Lexace.