Violation Of S. 50 NDPS Act, Discrepancies In Prosecution's Evidence: Allahabad HC Acquits Accused In 33 Year Old Case

“(Section 50 of the NDPS Act) is a crucial safeguard to ensure the fairness of the search process and to protect the rights of the accused. In this case, there is clear non-compliance with this mandatory provision, rendering the search and subsequent seizure legally flawed. The prosecution's failure to adhere to this statutory requirement further weakens its case,” a bench of Justice Shamim Ahmed noted in its 17-page order.

It may be noted that Section 50 of the NDPS Act mandates that the accused must be informed of their right to be searched in the presence of a Gazetted Officer or a Magistrate.

The Court also noted that the prosecution's case was primarily based on circumstantial evidence, with no direct evidence linking the appellants to the possession and distribution of narcotics.

Thus, the Court opined that, in the absence of direct evidence, the prosecution had failed to establish the appellants' guilt beyond a reasonable doubt.

The Court also observed that the individuals from whom the narcotics were allegedly recovered had been acquitted. At the same time, the appellants, from whom no recovery was made, were convicted, and this inconsistency highlighted the “arbitrary and unjust nature” of the trial court decision.

As per the prosecution's case, on September 13, 1991, a police Inspector received confidential information that two individuals, Baijnath and Vinod, were staying at a Hotel in Lucknow, and they were expecting a consignment of heroin 2 from Ikrar and Suhail.

Based on this information, a team of police officials surrounded the Hotel where the accused were staying. At around 2 p.m., two suspicious individuals arrived on a motorcycle and met Baijnath and Vinod. During their conversation, Vinod was handed a small packet, which he placed in his bag. The team then apprehended Baijnath and Vinod.

The Complainant lodged a written report against the appellants on September 14, 1991, under Sections 8/21/29 of the NDPS Act. To substantiate its case, the prosecution examined seven police witnesses. 

Though the accused-appellant Ikrar claimed that he was not present at the scene and that his signatures were forcibly taken at the DNC office, and accused-appellant Suhel also denied the allegations, stating that no statement was taken from him and his signatures were obtained under duress, the trial court convicted them.

Challenging their conviction, the accused-appellants moved the High Court, contending that the prosecution had failed to produce any independent witnesses to corroborate their story. Thus, the judgment and order passed solely based on the prosecution's evidence was not sustainable under the law.

It was strongly argued that Section 50 of the NDPS Act, a mandatory provision, had not been complied with in this case.

Further, it was submitted that the individuals from whom narcotics were allegedly recovered had been acquitted in the same case; however, the present appellants, from whom nothing was recovered, had been convicted.

On the other hand, the counsel for the Union of India defended the trial court's judgement, convicting the accused persons. It was contended that the acquittal of other individuals involved does not undermine the evidence against the appellants.

During the pendency of the appeal, accused Ikarar and hence, the appeal in his respect stood abated vide order dated July 3, 2024

Against this backdrop, the Court, at the outset, opined that the prosecution's case rested heavily on the testimonies of the investigating officers and lacked corroboration from independent witnesses.

The Court also found that the failure to fulfil the requirements of Section 50 of the NDPS Act and the prosecution's failure to produce independent witnesses to corroborate the testimonies of the investigating officers were significant lapses.

“…the appellant, prior to his search, was not produced before any Gazetted Officer or Magistrate, whereas according to prosecution before his search the police personnel were informed by the appellant that he was carrying the charas. Prosecution has also not produced any written consent of the appellant for his search. From perusal of testimony of prosecution witnesses, it does not transpire that any efforts were made by them to produce the appellant before any Gazetted Officer or Magistrate, as required by Section 50 of N.D.P.S. Act,” the Court noted.

The Court also observed no evidence was pointed to show that the respondent-accused was made aware of his right before the Magistrate or Gazetted Officer.

The court said that on perusing the deposition of PW, the complainant, no evidence has been adduced to show that the respondent-accused was communicated of his such right, and thus, there is a non-compliance of the provisions of Section 50 read with Section 43 of the NDPS Act.

Further, stating that the non-production of independent eyewitnesses had made the prosecution's case very doubtful, the Court acquitted the accused- Suhail, by giving him the benefit of the doubt.

Case title - Ikrar And Another vs. Union of India 2024 LiveLaw (AB) 472

Case citation: 2024 LiveLaw (AB) 472

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