# Ali Hasan v. State of U.P

- **Citation:** (2023) 11 ILRA 712
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-01
- **Case number:** Criminal Appeal No. 1284 of 2002
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ali-hasan-v-state-of-u-p-49396
- **Pages:** 6

## Headnote

Law
-
appeal
against
conviction
under
Section
20B(ii)B
of
N.D.P.S.
Act
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
11 All. Ali Hasan Vs. State of U.P.
713
Sections 8/20 - Prohibition of certain
operations
&
Punishment
for
contravention in relation to cannabis plant
and cannabis - It is mandatory for the
empowered officer to inform the suspect
of their right to be searched before a
gazetted
officer
or
Magistrate
under
Section 50(1) of the NDPS Act - Failure to
comply could result in the recovery of the
illicit article suspect and invalidate the
conviction.(Para -16, 17)

(B)
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 - Section 50 -
Conditions under which search of persons
shall be conducted - search of the
suspected person must be done before the
Magistrate or Gazetted Officer, Section 55
& 57 - seized contraband article be kept
by Station House Officer in safe custody
and report of arrest and seizure be sent
immediately to immediate Superior Officer
within 48 hours - only on account of the
fact that prosecution case is based on
testimony of police witness, it cannot be
thrown out, if the evidence of such
witness is wholly reliable.
(Para
-
14,
15)

Accused flees after police vehicle - carrying
charas for sale - Police asks for consent for
search by gazetted officer- Accused consents to
police search - Upon search, a plastic bag
containing charas was recovered - trial Court
convicted and sentenced appellant - aggrieved -
hence appeal - no independent eye-witnesses of
alleged recovery - making prosecution case
doubtful - appellant was not produced before
any Gazetted Officer or Magistrate before his
search - no compliance of Section 50 N.D.P.S.
Act - unreliable testimony of police personnel -
illegalities and material irregularities committed
by witnesses. (Para - 4, 18 to 21)

HELD:-
Prosecution case
based
on
oral
testimony of police personnel. Prosecution failed
to prove its case beyond reasonable doubt
against appellant. Trial court erred in discussing
the prosecution's evidence and has passed a
judgment against the settled principle of law,
including the provisions of the N.D.P.S. Act.
Impugned judgment and order set aside and
reversed. Accused/appellant acquitted. (Para -
14, 22, 23)

Criminal Appeal allowed. (E-7)

LIST OF CASES CITED:-

## Text

712 INDIAN LAW REPORTS ALLAHABAD SERIES
warranted at this stage. Still, this court is
duty bound to objectively assess the matter
and record the reasons on its conclusion for
deciding the application for suspension of
sentence.

18.2 On perusal of the testimony
of PW-1 and PW-2, prima-facie, it
transpires that the testimony of PW-1 and
PW-2 are trustworthy and reliable as both
are victims of sexual offence and advances
by same man. And no explanation has been
put forth for the false implication of the
accused-appellant
except
that
the
complainant and victim was in relationship,
even if it is presumed, at this stage, the
victim was in a relationship with the
accused, it does not give a licence to the
accused to exploit the women for all time
to come and also to have evil eyes on her
young daughter.

18.3 The complainant had to
withdraw the complaint dated 02.11.2024
lodged at PS Civil Lines, Ballia, under
pressure from the accused-appellants and
his family members. This shows that the
accused wields substantial and compelling
influence in the administration, and may
cause harm to the complainant and her
daughter's safety and security if released on
bail at this stage.

18.4 On perusal of the custody
certificate of the accused-appellant, it
reflects that the accused has undergone
custody of only 153 days till 07.05.2023,
even though he has been awarded a
maximum sentence of ten years along with
lesser sentences, apart from fine.

18.5 The accused-appellant is not
a man of the clean antecedent. A Case
Crime No. 0057 of 2020 P.S. Kotwali,
District Ballia, under Section 419 and 422
IPC has been registered against the
accused-appellant.

19. For the reasons detailed above, the
application for suspension of sentence is
dismissed at this stage.

20. While concluding, however, I
hasten to add that my observations are
confined to the question as to whether a
case of suspension of sentence are made
out or not and shall not affect the merit of
the case when the appeal comes up for
hearing before this Court.

21. If the appeal is not listed for final
hearing after a year, the prayer for suspension of
sentence may be revived, afresh and shall be
decided on merits of the case.

22. List the appeal for hearing at the
earliest.
----------
(2023) 11 ILRA 712
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.11.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1284 of 2002

Ali Hasan ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
R.P. Dwivedi

Counsel for the Opposite Party:
G.A.

(A)
Criminal
Law
-
appeal
against
conviction
under
Section
20B(ii)B
of
N.D.P.S.
Act
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
11 All. Ali Hasan Vs. State of U.P.
713
Sections 8/20 - Prohibition of certain
operations
&
Punishment
for
contravention in relation to cannabis plant
and cannabis - It is mandatory for the
empowered officer to inform the suspect
of their right to be searched before a
gazetted
officer
or
Magistrate
under
Section 50(1) of the NDPS Act - Failure to
comply could result in the recovery of the
illicit article suspect and invalidate the
conviction.(Para -16, 17)

(B)
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 - Section 50 -
Conditions under which search of persons
shall be conducted - search of the
suspected person must be done before the
Magistrate or Gazetted Officer, Section 55
& 57 - seized contraband article be kept
by Station House Officer in safe custody
and report of arrest and seizure be sent
immediately to immediate Superior Officer
within 48 hours - only on account of the
fact that prosecution case is based on
testimony of police witness, it cannot be
thrown out, if the evidence of such
witness is wholly reliable.
(Para
-
14,
15)

Accused flees after police vehicle - carrying
charas for sale - Police asks for consent for
search by gazetted officer- Accused consents to
police search - Upon search, a plastic bag
containing charas was recovered - trial Court
convicted and sentenced appellant - aggrieved -
hence appeal - no independent eye-witnesses of
alleged recovery - making prosecution case
doubtful - appellant was not produced before
any Gazetted Officer or Magistrate before his
search - no compliance of Section 50 N.D.P.S.
Act - unreliable testimony of police personnel -
illegalities and material irregularities committed
by witnesses. (Para - 4, 18 to 21)

HELD:-
Prosecution case
based
on
oral
testimony of police personnel. Prosecution failed
to prove its case beyond reasonable doubt
against appellant. Trial court erred in discussing
the prosecution's evidence and has passed a
judgment against the settled principle of law,
including the provisions of the N.D.P.S. Act.
Impugned judgment and order set aside and
reversed. Accused/appellant acquitted. (Para -
14, 22, 23)

Criminal Appeal allowed. (E-7)

LIST OF CASES CITED:-

1. Vijaysinh Chandubha Jadeja Vs St. of Guj. ,
2010 (2) EFR 755

2. St. of Raj. Vs Parmanand & anr., (2014) 2
SCC (Cri) 563

3. Vijaysinh Chandubha Jadeja Vs St. of Guj. ,
2010 (2) EFR 755

4. St. of Raj. Vs Parmanand & anr. , (2014) 2
SCC (Cri) 563

(Delivered by Hon'ble Shamim Ahmed, J.)

1. The case is taken up in the revised
call.

2. Heard learned counsel for the
parties.

3. This appeal has been preferred
against the judgment and order dated
16.09.2002 passed by learned Special /
Additional Sessions Judge (E.C. Act),
Bahraich in Sessions Trial No.62 of 1998,
Case Crime No.309 of 1998, under
Sections 8/20 of N.D.P.S. Act, Police
Station
Pakharpur,
District
Bahraich,
convicting and sentencing the appellant
under Section 20B(ii)B of N.D.P.S. Act for
three
years
rigorous
imprisonment
alongwith fine of Rs.20,000/- and in default
of payment of fine, the appellant was
further directed to undergo six months'
rigorous imprisonment.

4. The prosecution story, in brief, as
disclosed in the first information report, is
that while the S.H.O. Udairaj Singh
alongwith some police personnel was
714 INDIAN LAW REPORTS ALLAHABAD SERIES
patrolling and searching some accused of
another crime, he saw a man, who on
seeing police vehicle, started fleeing away.
The police party caught that man and on
being asked his name, he told his name as
Ali Hasan. The accused was further
inquired as to why he was fleeing after
seeing the police vehicle, in reply, he
informed that he was carrying charas and
he used to supply charas and for selling the
same, he was going to Lucknow. The
police party asked the accused whether he
want to get searched by a gazetted officer
or police may make a search upon him. The
accused consented that police may make
search upon him. On being searched, a
plastic bag was recovered containing
charas. On the basis of aforesaid incident,
Case Crime No.309 of 1998, under
Sections 8/20 of N.D.P.S. Act was
registered at Police Station Pakharpur,
District Bahraich.

5. Investigation was handed over to
the Sub Inspector Dayashanker Mishra,
who in turn got the sample chemically
examined and received a report. He took
the statements of witnesses of recovery and
prepared the site plan and on finding
sufficient evidence, he filed charge sheet
against the accused in the Court.

6. The accused-appellant was charged
for offence u/s 8/20 N.D.P.S. Act; to which
he pleaded not guilty and claimed for trial.

7. In support of the prosecution case,
the prosecution examined Udairaj Singh,
Inspector as P.W.-1, S.I. Ram Gopal Yadav
as P.W.-2, Dayashanker Mishra, I.O. as
P.W.-3 and Constable Radheshyam as
P.W.-4.

8. Formal proof of prosecution papers
have been admitted by the accused.

9. Appellant was examined under
Section
313
of
Code
of
Criminal
Procedure, 1973, (in short 'Code') wherein
he stated that he had been falsely
implicated due to enmity with the Block
Pramukh.

10. Learned trial Court, after going
through the evidence available on record as
well as after due hearing the learned
counsel for both the parties, convicted and
sentenced the appellant under Section
20B(ii)B of N.D.P.S. Act for three years
rigorous imprisonment alongwith fine of
Rs.20,000/- and in default of payment of
fine, the appellant was further directed to
undergo
six
months'
rigorous
imprisonment.

11. Aggrieved by the aforesaid
judgment and order, the appellant has filed
this appeal.

12. Learned counsel for the appellant
argued that Section 50 of the N.D.P.S. Act
is a mandatory provision. The arresting
officer
has
not
complied
with
that
provision. As such, the recovery is illegal
which vitiates the trial. Learned counsel
further submitted that the alleged place of
recovery is public place but no effort to
invite the public witness at the time of
recovery was made by the police party.
Learned
trial
Court
without
proper
appreciation of the evidence available on
record has illegally convicted the appellant
vide impugned judgment and order which
is liable to be set aside as the prosecution
has miserably failed to prove its case
beyond reasonable doubt. In support of his
argument learned counsel for the appellant
has placed reliance on law laid down by
Hon'ble Supreme Court in Vijaysinh
Chandubha Jadeja Vs. State of Gujarat,
2010 (2) EFR 755 and State of Rajasthan
11 All. Ali Hasan Vs. State of U.P.
715
Vs. Parmanand and another, (2014) 2
SCC (Cri) 563.

13. Learned A.G.A. vehemently
opposed the submission of learned counsel
for the appellant and submitted that there is
no illegality in the impugned judgment and
order as it is settled provision of law that
only on the solitary testimony of witness,
conviction can be maintained and statement
of police witness cannot be rejected on the
ground that he is a police witness. Learned
A.G.A. further submitted that impugned
judgment and order, passed by trial Court,
is well reasoned, well discussed and appeal
is liable to be dismissed.

14. After considering the arguments
advanced by learned counsel for the parties
and after perusal of record, this Court finds
that the prosecution case is based on oral
testimony of police personnel. It is settled
principle of law that only on account of the
fact that prosecution case is based on
testimony of police witness, it cannot be
thrown out, if the evidence of such witness
is wholly reliable.

15. Severe punishment has been
provided in the N.D.P.S. Act to check the
misuse of this Act by the police personnel
or
officers
and
certain
safeguards
particularly Section 50 of N.D.P.S. Act has
been incorporated in this Act that search of
the suspected person must be done before
the
Magistrate
or
Gazetted
Officer.
Similarly Section 55 and 57 of N.D.P.S.
Act provides that seized contraband article
be kept by Station House Officer in safe
custody and report of arrest and seizure be
sent immediately to immediate Superior
Officer within 48 hours.

16. Hon'ble Supreme Court in
Vijaysinh Chandubha Jadeja Vs. State of
Gujarat, 2010 (2) EFR 755, while
discussing the importance and relevancy of
section 50 of N.D.P.S. Act, in para-22, has
opined as under:-

"22. In view of the foregoing
discussion, we are of the firm opinion that
the object with which right under Section
50(1) of the NDPS Act, by way of a
safeguard, has been conferred on the
suspect, viz. to check the misuse of power,
to avoid harm to innocent persons and to
minimise the allegations of planting or
foisting of false cases by the law
enforcement
agencies,
it
would
be
imperative on the part of the empowered
officer to apprise the person intended to be
searched of his right to be searched before
a gazetted officer or a Magistrate. We have
no hesitation in holding that in so far as the
obligation of the authorised officer under
sub-section (1) of Section 50 of the NDPS
Act is concerned, it is mandatory and
requires a strict compliance. Failure to
comply with the provision would render the
recovery of the illicit article suspect and
vitiate the conviction if the same is
recorded only on the basis of the recovery
of the illicit article from the person of the
accused during such search. Thereafter, the
suspect may or may not choose to exercise
the right provided to him under the said
provision. As observed in Re Presidential
Poll (1974) 2 SCC 33, it is the duty of the
courts to get at the real intention of the
Legislature by carefully attending to the
whole scope of the provision to be
construed. "The key to the opening of every
law is the reason and spirit of the law, it is
the animus imponentis, the intention of the
law maker expressed in the law itself, taken
as a whole." We are of the opinion that the
concept of "substantial compliance" with
the requirement of Section 50 of the NDPS
Act introduced and read into the mandate
716 INDIAN LAW REPORTS ALLAHABAD SERIES
of the said Section in Joseph Fernandez
(supra) and Prabha Shankar Dubey (supra)
is neither borne out from the language of
sub-section (1) of Section 50 nor it is in
consonance with the dictum laid down in
Baldev Singh's case (supra). Needless to
add that the question whether or not the
procedure prescribed has been followed
and the requirement of Section 50 had been
met, is a matter of trial. It would neither be
possible nor feasible to lay down any
absolute formula in that behalf. We also
feel that though Section 50 gives an option
to the empowered officer to take such
person (suspect) either before the nearest
gazetted officer or the Magistrate but in
order to impart authenticity, transparency
and
creditworthiness
to
the
entire
proceedings, in the first instance, an
endeavour should be to produce the suspect
before the nearest Magistrate, who enjoys
more confidence of the common man
compared to any other officer. It would not
only
add
legitimacy
to
the
search
proceedings, it may verily strengthen the
prosecution as well."

17. Hon'ble Supreme Court in State of
Rajasthan Vs. Parmanand and another,
(2014) 2 SCC (Cri) 563, again in
paragraph-17, has opined as under:-

"In
our
opinion,
a
joint
communication of the right available under
Section 50(1) of the NDPS Act to the
accused would frustrate the very purport of
Section 50. Communication of the said
right to the person who is about to be
searched is not an empty formality. It has a
purpose. Most of the offences under the
NDPS Act carry stringent punishment and,
therefore, the prescribed procedure has to
be
meticulously
followed.
These
are
minimum safeguards available to an
accused against the possibility of false
involvement. The communication of this
right has to be clear, unambiguous and
individual. The accused must be made
aware of the existence of such a right. This
right would be of little significance if the
beneficiary thereof is not able to exercise it
for want of knowledge about its existence.
A joint communication of the right may not
be clear or unequivocal. It may create
confusion. It may result in diluting the
right. We are, therefore, of the view that the
accused must be individually informed that
under Section 50(1) of the NDPS Act, he
has a right to be searched before a nearest
gazetted officer or before a nearest
Magistrate. Similar view taken by the
Punjab & Haryana High Court in Paramjit
Singh and the Bombay High Court in
Dharamveer Lekhram Sharma meets with
our approval."

18. Admittedly, the prosecution has
not produced other independent eyewitnesses of the alleged recovery and even
no explanation has been offered by the
prosecution for their non-production. All
the witnesses are police personnel. Nonproduction of independent eye witness is
serious lacuna which has made the
prosecution case very doubtful.

19. In addition to above, admittedly
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
11 All. Kalimulla Vs. Smt. Mehroz Jafri & Anr.
717
N.D.P.S. Act, in view of law laid down by
Apex Court in Vijaysinh Chandubha
Jadeja (Supra).

20. Further, it is also pertinent to note
at this juncture that not only the manner in
which the appellant was searched, is
doubtful, the prosecution has also not
prosecuted the case seriously, knowing that
severe punishment has been provided in
N.D.P.S. Act. It produced only four
witnesses i.e Udairaj Singh, Inspector as
P.W.-1, S.I. Ram Gopal Yadav as P.W.-2,
Dayashanker Mishra, I.O. as P.W.-3 and
Constable Radheshyam as P.W.-4 and
withheld
other
witness
without
any
justification.

21. In the light of above discussion, it
is clear that the prosecution has failed to
prove the mandatory compliance of Section
50 N.D.P.S. Act. In absence of compliance
of mandatory provision of Section 50
N.D.P.S Act, the prosecution case, based
on testimony of police personnel i.e.
Udairaj Singh, Inspector as P.W.-1, S.I.
Ram Gopal Yadav as P.W.-2, Dayashanker
Mishra, I.O. as P.W.-3 and Constable
Radheshyam as P.W.-4, whose statements
are not wholly reliable, cannot be held as
proved beyond reasonable doubt in view of
the
other
illegalities
and
material
irregularity committed by the witnesses as
discussed above.

22. Thus this Court is of the view that
prosecution has miserably failed to prove
its case beyond reasonable doubt against
the appellant. The trial Court has not
properly discussed the evidence produced
by the prosecution and has passed the
impugned judgment and order against the
settled
principle
of
law
including
provisions of N.D.P.S. Act. This Court,
therefore, unable to uphold the conviction
and sentence of the appellant. The appellant
is entitled to be acquitted. The impugned
judgment and order is liable to be set aside
and accordingly, appeal is liable to be
allowed.

23. In view of the above, impugned
judgment and order dated 16.09.2002
passed by learned Special / Additional
Sessions Judge (E.C. Act), Bahraich in
Sessions Trial No.62 of 1998, Case Crime
No.309 of 1998, under Sections 8/20 of
N.D.P.S. Act, Police Station Pakharpur,
District Bahraich, is set aside and reversed
and accused/appellant, namely, Ali Hasan
is acquitted of the charges levelled against
him. Consequently, the appeal is allowed.
His personal bond and surety bonds are
canceled and sureties are discharged.

24. Let a copy of this judgment
alongwith the lower court record be sent
immediately to the Trial Court concerned
for necessary compliance.

25. No order as to the costs.
----------
(2023) 11 ILRA 717
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.11.2023

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Appeal No. 3040 of 2023

Kalimulla ...Appellant
Versus
Smt. Mehroz Jafri & Anr. ..Opposite Parties

Counsel for the Appellant:
Pal Singh Yadav, Ashish Kumar Singh,
Prathama Singh

Counsel for the Opposite Parties: