# Liyaqat Ali v. State of U.P

- **Citation:** (2023) 7 ILRA 6
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-14
- **Case number:** Criminal Appeal No. 12 of 1999
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/liyaqat-ali-v-state-of-u-p-50387
- **Pages:** 16

## Headnote

Criminal Law - Narcotics Drugs and
Psychotropic
Substance
Act,
1985
-
Sections 8/21, 42 & 50 - Arms Act, 1959 -
Section 25/4 - Appeal against conviction -
Rigorous imprisonment - Code of Criminal
Procedure, 1973 - Sections 313, 437-A -
Contraband
narcotic
and
knife
was
recovered
from
personal
search
of
appellant
-
On
being
confronted
to
produce license of keeping said items,
failed
to
produce
valid
document
-
Recovery memo prepared on place of
arrest and F.I.R registered - Charges
framed - Prosecution produced only P.W.1
and P.W.2 - Appellant contended that no
public witness produced despite recovery
made in busy public place, sufficient
infirmities in procedural steps which
ought to have been undertaken by Police
and statutory provisions regarding search
and seizure have been disregarded by
Investigating Officer - Police not carrying
any instrument of weighing and no
explanation regarding weight of recovered
articles assessed. (Para 2, 3, 4, 5,10)

Held, admittedly, S.I. who was vital
witness, who prepared recovery memo
has not been examined by prosecution, no
explanation given - From perusal of
testimonies of P.W. 1 and P.W. 2, it was
evident that appellant was never informed
regarding his statutory right to be searched
before Magistrate or Gazetted Officer, gross
violation of Section 50, NDPS Act - If
recovery of contraband narcotics and knife
has been made in contravention to Section
50, NDPS Act, whole prosecution story
becomes doubtful and appellant entitled for
acquittal - Impugned order set aside. (Para
19, 24, 25)

Appeal allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,756 of 55,609. This is a partial read: ask again with offset=39756 for what follows._

6 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 7 ILRA 6
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 14.07.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Criminal Appeal No. 12 of 1999

Liyaqat Ali ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Rishad Murtaza, Alok Singh, Syed Mehfuzur
Rehman, Vikas Vikram Singh

Counsel for the Respondent:
G.A.

Criminal Law - Narcotics Drugs and
Psychotropic
Substance
Act,
1985
-
Sections 8/21, 42 & 50 - Arms Act, 1959 -
Section 25/4 - Appeal against conviction -
Rigorous imprisonment - Code of Criminal
Procedure, 1973 - Sections 313, 437-A -
Contraband
narcotic
and
knife
was
recovered
from
personal
search
of
appellant
-
On
being
confronted
to
produce license of keeping said items,
failed
to
produce
valid
document
-
Recovery memo prepared on place of
arrest and F.I.R registered - Charges
framed - Prosecution produced only P.W.1
and P.W.2 - Appellant contended that no
public witness produced despite recovery
made in busy public place, sufficient
infirmities in procedural steps which
ought to have been undertaken by Police
and statutory provisions regarding search
and seizure have been disregarded by
Investigating Officer - Police not carrying
any instrument of weighing and no
explanation regarding weight of recovered
articles assessed. (Para 2, 3, 4, 5,10)

Held, admittedly, S.I. who was vital
witness, who prepared recovery memo
has not been examined by prosecution, no
explanation given - From perusal of
testimonies of P.W. 1 and P.W. 2, it was
evident that appellant was never informed
regarding his statutory right to be searched
before Magistrate or Gazetted Officer, gross
violation of Section 50, NDPS Act - If
recovery of contraband narcotics and knife
has been made in contravention to Section
50, NDPS Act, whole prosecution story
becomes doubtful and appellant entitled for
acquittal - Impugned order set aside. (Para
19, 24, 25)

Appeal allowed. (E-13)

List of Cases cited:

1. Vijaysinh Chandubha Jadeja Vs St. of Guj.,
(2021) 1 SCC 609 (Para 29, 30, 32)

2. Munnan Vs St. of U.P., Criminal Appeal No. 437
of 1997, decided on 05.01.2021((Para 16 to 19)

3. Ram Pratap Vs St. of U.P., Criminal Appeal
No. 357 of 1999 decided on 22.05.2020 (Para
16 to 18)

4. Vijay Jain Vs St. of M. P., (2013) 14 SCC 527,
(Para 10 to 13)

5. Jitendra Vs St. of M.P., (2004) 10 SCC 562,
(Para 6, 9,10)

6. Ashok @ Dangra Jaiswal, (2011) 5 SCC 123,
(Para 10 to 13)

7. St. of Raj. Vs Parmanand & anr., (2014) 2 SCC
(Cri) 563, (Para 17)

8. In re Presidential Poll (1974) 2 SCC 33

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1). Heard Sri Vikas Vikram Singh and
Sri Syed Mehfuzur Rehman, learned
counsel for the appellant, learned AGA for
the State and perused the record.

2). The instant appeal has been
preferred under Section 374 of Cr.P.C.
7 All. Liyaqat Ali Vs. State of U.P.
7
against the judgement and order dated
29.10.1998 passed by Additional Sessions
and
District
Judge,
VIIIth,
District
Lucknow in Session Trial No. 110 of 1994,
arising out of Case Crime No. 352 of 1994,
Police
Station
Hazratganj
District
Lucknow, wherein, the appellant, Liyaqat
Ali, has been convicted and sentenced for
the offence under Section 8/21 of Narcotics
Drugs and Psychotropic Substance Act,
1985, (hereinafter referred as 'NDPS Act')
for 10 years rigrious imprisonment with
fine of Rs. 1,00,000/- and in default of
payment of fine he shall further undergo
two years of simple imprisonment and in
Case Crime No. 353 of 1994, Police Station
Hazratganj, District Lucknow, in addition
to the aforesaid sentence, the appellant has
also been convicted and sentenced for the
offence under Section 25/4 of the Arms
Act, 1959 for one year of simple
imprisonment. Both the sentences were
ordered to be run concurrently.

3). The prosecution case in brief is
that
on
23.03.1994
at
11:45,
the
appellant/accused was arrested by the
Police at the boundary of Gora Kabristan
and a knife as well as 500 gms Smack was
recovered from his possession. On being
confronted to produce the license of
keeping
the
knife
as
well
as
the
contraband/smack, the accused-appellant
failed to produce any valid document.
Inspector Sunil Kumar Mishra prepared the
recovery memo on the place of occurrence
on the basis of which Head Constable
Harful Verma scribed the First Information
Report and made an entry in the GD
regarding the possession of illegal arm and
contraband with the accused-appellant on
basis of which the First Information Report
was registered and the investigation was
carried by Sub-Inspector S.S. Hussain and
on
account
of
incompletion
of
the
investigation,
the
investigation
was
entrusted to Sub-Inspector, R.K. Tiwari but
also due to some reasons, he could not
complete the investigation and then the
investigation was entrusted to V.K. Trivedi
who after completing the investigation and
on the basis of FSL Report ascertaining that
the
contraband
recovered
from
the
possession of the appellant is Smack, filed
a charge-sheet against the appellant under
Section 8/21 of the NDPS Act and under
Section 25/4 of the Arms Act.

4). Charges for the offence under
Section 8/21 of the NDPS Act and Section
25/4 of the Arms Act were framed by the
learned trial Court and it was read to the
appellant which he denied and claimed for
trial.

5). The prosecution, in order to prove
its case produced Sub-Inspector Sadanand
Rai (P.W.1) and Constable Satendra Pachori
(P.W.2). Apart from the aforesaid two
witnesses, there were no other witness
produced by the prosecution for the reason
that the learned counsel appearing on
behalf of the appellant before the learned
trial Court confessed the certification of the
documentary evidence.

6).

After
conclusion
of
the
prosecution witness, the statement was
recorded under Section 313 of Cr.P.C.
where he denied the prosecution and stated
that no recovery was made from his
possession and all the documents were
prepared fraudulently with a motive to
falsely implicate him.

7). To controvert the prosecution
story, Nisar (D.W.1) and Ikrar Ahmed
(D.W.2) were examined by the appellant
and a copy of the telegram of intervening
night 22/23 dated 23.03.1994 to the Station
8 INDIAN LAW REPORTS ALLAHABAD SERIES
House
Officer,
Hazratganj
was
also
produced as an evidence in which it was
stated that at about 1 of 2 in the night, some
police personals called Ikrar and Liyaqat
Ali and both were taken by the police
personals on a pretext that the Inspector of
Police Station has called them. Apart from
the aforesaid, there is no other evidence
produced on behalf of the appellant.

8). After the conclusion of the trial,
the learned trial Court hold the appellant
guilty under Section 8/21 of NDPS Act and
25/4 of Arms Act and sentenced him as
above vide impugned judgement and order.

9). Aggrieved with the impugned
judgement this appeal has been preferred.

10). The learned counsel appearing
for the appellant submits that he is innocent
and has falsely been implicated in this case
by the Police. The learned counsel for the
appellant has further submitted that the
Police has also not complied the mandatory
provision of Section 50 of the NDPS Act. It
is further submitted by the learned counsel
for the appellant that no public witness was
produced despite the said recovery was
alleged to be made in a busy public place.
The learned counsel for the appellant
submits that there are sufficient infirmities
in the procedural steps which ought to have
been undertaken by the Police and statutory
provisions regarding search and seizure
have been disregarded by the Investigating
Officer. He further submits that as a matter
of fact the appellant was illegally arrested
in the intervening night of 22/23.03.1994 at
around 02:00 A.M. by the Police of Police
Station, Hazratganj and subsequently, he
was falsely implicated in the present
criminal case on 23.03.1994. It is further
submitted by the learned counsel for the
appellant that from the perusal of the First
Information Report it is evident that there is
over writing in the column relating to the
date of occurrence and the date of lodging
of First Information Report. It is further
submitted that the Police was not carrying
any instrument of weighing and there is no
explanation as to how the weight of the
recovered articles were assessed. It is
further submitted by the learned counsel for
the appellant that the percentage of narcotic
substance were not assessed by the
chemical analysis in the report dated
06.06.1999. He added that the alleged
recovery is of 23.03.1994 and the sample
reached
the
Forensic
Laboratory
on
16.05.1994 and there is no plausible
explanation for the delay caused and there
is complete violation of provision of the
NDPS Act by the Police as Section 50 of
NDPS Act has been violated as well as
Section 42 of NDPS Act has also not been
complied with by the Police.

11). In support of his contention, the
learned counsel for the appellant has also
placed
reliance
on
the
following
judgements and referred the following
paragraphs:-

1) Vijaysinh Chandubha Jadeja
Vs. State of Gujrat, (2021) 1 SCC 609
and has referred paragraphs 29, 30 and 32
which are quoted herein under:-

"29.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
7 All. Liyaqat Ali Vs. State of U.P.
9
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(1)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.

30.As observed in Re Presidential
Poll, 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."

32.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."

2) Munnan Vs. State of U.P.
arising out of Criminal Appeal No. 437
of 1997 decided on 05.01.2021 and has
referred paragraphs 16, 17, 18 and 19
which are quoted herein:-

"16. The Hon'ble Supreme Court
in a catena of decisions, has discussed the
importance of Section 50 of NDPS Act. In
State of Punjab vs. Baldev Singh AIR 1999
SC 2378, the Constitutional Bench of
Supreme Court has elaborately discussed
the importance and scope of mandatory
provisions of Section 50 of NDPS Act as
follows :

"55. On the basis of the reasoning
and
discussion
above,
the
following
conclusions arise :

(1) That when an empowered
officer or a duly authorised officer acting
on prior information is about to search a
person, it is imperative for him to inform
the concerned person of his right under
Sub-section (1) of Section 50 of being taken
to the nearest Gazetted Officer or the
nearest Magistrate for making the search.
However,
such
information
may
not
necessarily be in writing;

(2) That failure to inform the
concerned person about the existence of his
right to be searched before a Gazetted
Officer or a Magistrate would cause
prejudice to an accused;

(3) That a search made, by an
empowered officer, on prior information,
without informing the person of his right
that, if he so requires, he shall be taken
before a Gazetted Officer or a Magistrate
for search and in case he so opts, failure to
conduct his search before a Gazetted
Officer or a Magistrate, may not vitiate the
trial but would render the recovery of the
illicit article suspect and vitiate the
conviction and sentence of an accused,
where the conviction has been recorded
only on the basis of the possession of the
illicit article, recovered from his person,
during a search conducted in violation of
the provisions of Section 50 of the Act:

(4) That there is indeed need to
protect society from criminals. The societal
10 INDIAN LAW REPORTS ALLAHABAD SERIES
intent in safety will suffer if persons who
commit crimes are let off because the
evidence against them is to be treated as if
it does not exist. The answer, therefore, is
that the investigating agency must follow
the procedure as envisaged by the statute
scrupulously and the failure to do so must
be viewed by the higher authorities
seriously
inviting
action
against
the
concerned official so that the laxity on the
part of the investigating authority is
curbed. In every case the end result is
important but the means to achieve it must
remain above board. The remedy cannot be
worse
than
the
disease
itself.
The
legitimacy of judicial process may come
under cloud if the court is seen to condone
acts of lawlessness conducted by the
investigating
agency
during
search
operations and may also undermine respect
for law and may have the effect of
unconscionably
compromising
the
administration of justice. That cannot be
permitted. An accused is entitled to a fair
trial. A conviction resulting from an unfair
trial is contrary to our concept of justice.
The use of evidence collected in breach of
the safeguards 50 have by Section 50 at the
trial, would render the trial unfair.

(5) That whether or not the
safeguards provided in Section 50 have
been duly observed would have to be
determined by the Court on the basis of
evidence led at the trial. Finding on that
issue, one way or the other, would be
relevant
for
recording
an
order
of
conviction or acquittal. Without giving an
opportunity to the prosecution to establish,
at the trial, that the provisions of Section
50,
and
particularly
the
safeguards
provided therein were duly complied with,
it would not be permissible to cut- short a
criminal trial;

(6) That in the context in which
the protection has been incorporated in
Section 50 for the benefit of the person
intended to be searched, we do not express
any opinion whether the provisions of
Section 50 are mandatory or directory, but,
hold that failure to inform the concerned
person of his right as emanating from Subsection (1) of Section 50, may render the
recovery of the contraband suspect and the
conviction and sentence of an accused bad
and unsustainable in law;

(7) That an illicit article seized
from the person of an accused during
search conducted in violation of the
safeguards provided in Section 50 of the
Act cannot be used as evidence of proof of
unlawful possession of the contraband on
the accused though any other material
recovered during that search may be relied
upon
by
the
prosecution,
in
other
proceedings,
against
an
accused,
notwithstanding the recovery of that
material
during
an
illegal
search;
....................."
(Emphasis supplied)

17.
In
Vijaysing
Chandubha
Jadeja vs. State of Gujarat, AIR 2011 SC 77
while discussing the scope of Section 50 of
NDPS Act, the Constitutional Bench of
Supreme Court while observing that mere
informing the accused his willingness to be
searched
before
Gazetted
Officer
or
Magistrate is not sufficient but it is the duty
of the concerned officer to apprise the
accused about his/her right of Section 50 of
the Act has held 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
7 All. Liyaqat Ali Vs. State of U.P.
11
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
Poll14, 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
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."

(Emphasis Supplied)"

18. In Arif Khan @ Agha Khan
vs. State of Uttarakhand AIR 2018 SC
2123,
Hon'ble
Supreme
Court
while
discussing the importance of compliance of
mandatory provision of Section 50 of
N.D.P.S. Act, has held as below:-

"21. What is the true scope and
object of Section 50 of the NDPS Act, what
are the duties, obligation and the powers
conferred on the authorities under Section
50 and
whether
the
compliance
of
requirements of Section 50 are mandatory
or directory, remains no more res integra
and are now settled by the two decisions of
the Constitution Bench of this Court in
State of Punjab vs. Baldev Singh (1999) 6
SCC 172: (AIR 1999 SC 2378) and
Vijaysinh Chandubha Jadeja (AIR 2011 SC
77) (supra).

22. Indeed, the latter Constitution
Bench decision rendered in the case of
Vijaysinh Chandubha Jadeja (AIR 2011 Sc
77) (supra) has settled the aforementioned
questions after taking into considerations
all previous case law on the subject.

23. Their Lordships have held in
Vijaysinh Chandubha Jadeja (AIR 2011 SC
77) (supra) that the requirements of Section
50 of the NDPS Act are mandatory and,
therefore, the provisions of Section 50 must
be strictly complied with. It is held that it is
imperative on the part of the Police Officer
to apprise the person intended to be
12 INDIAN LAW REPORTS ALLAHABAD SERIES
searched of his right under Section 50 to be
searched only before a Gazetted officer or
a Magistrate. It is held that it is equally
mandatory on the part of the authorized
officer to make the suspect aware of the
existence of his right to be searched before
a Gazetted Officer or a Magistrate, if so
required by him and this requires a strict
compliance. It is ruled that the suspect
person may or may not choose to exercise
the right provided to him under Section 50
of the NDPS Act but so far as the officer is
concerned, an obligation is cast upon him
under Section 50 of the NDPS Act to
apprise the suspect of his right to be
searched before a Gazetted Officer or a
Magistrate. (See also Ashok Kumar Sharma
vs. State of Rajasthan, 2013 (2) SCC 67
and Narcotics Control Bureau vs. Sukh Dev
Raj Sodhi, 2011 (6) SCC 392) : (AIR 2011
SC 1939)."
(Emphasis Supplied)

19. Thus, it is clear that if the
contraband narcotics was recovered in
contravention of specific mandate of
Section 50 of the Act, the whole prosecution
story becomes doubtful and the appellant is
entitled for acquittal. "

3) Ram Pratap Vs. State of U.P.
arising out of Criminal Appeal No. 357
of 1999 decided on 22.05.2020 and has
referred paragraphs 16, 17 and 18 which
are quoted herein:-

"16. 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.

17. 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
held 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
7 All. Liyaqat Ali Vs. State of U.P.
13
concept of "substantial compliance" with
the requirement of Section 50 of the NDPS
Act introduced and read into the mandate
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."
(Emphasis supplied)

18. Hon'ble Supreme Court in
State of Rajasthan Vs. Parmanand and
another, (2014) 2 SCC (Cri) 563, again in
paragraph-17, has held 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."

4) Vijay Jain Vs. State of
Madhya Pradesh, (2013) 14 SCC 527 and
has referred paragraphs 10, 11, 12 and 13
which are quoted herein:-

"10. On the other hand, on a
reading of this Court's judgment in Jitendra
case [Jitendra v. State of M.P., (2004) 10
SCC 562 : 2004 SCC (Cri) 2028] , we find
that this Court has taken a view that in the
trial for an offence under the NDPS Act, it
was necessary for the prosecution to
establish by cogent evidence that the
alleged quantities of the contraband goods
were seized from the possession of the
accused and the best evidence to prove this
fact is to produce during the trial, the
seized materials as material objects and
where the contraband materials alleged to
have been seized are not produced and
there is no explanation for the failure to
produce the contraband materials by the
prosecution, mere oral evidence that the
materials were seized from the accused
14 INDIAN LAW REPORTS ALLAHABAD SERIES
would not be sufficient to make out an
offence under the NDPS Act particularly
when the panch witnesses have turned
hostile. Again, in Ashok [Ashok v. State of
M.P., (2011) 5 SCC 123 : (2011) 2 SCC
(Cri) 547] this Court found that the alleged
narcotic powder seized from the possession
of the accused was not produced before the
trial court as material exhibit and there
was no explanation for its non-production
and this Court held that there was therefore
no evidence to connect the forensic report
with the substance that was seized from the
possession of the appellant.

11.In the present case, finding of
the trial court that the seized contraband
goods were produced in a suitcase is
contrary to the evidence of PW 11, which is
to the following effect:

"81. Note.-A big suitcase from
the store materials on which No. 466/05 is
written has been received in a white cloth
along with seal of the sealing material. In
this the lock is of numbers and the lock is
not getting open because of this AGP is
directed to call some technical person for
opening the lock, on this AGP had called
Shri Shakoor who expressed that the lock is
of numbers and cannot be opened, it can be
broken. In the case, the evidence material is
important and therefore it was directed to
break the lock, the lock was opened. In the
suitcase on the opening a big packet
wrapped in cloth was found but the cloth is
torn and blue colour polythene is being
seen in which clothes are there. The cloth
which is rolled on blue colour polythene
there is no seal visible on it, nor any
description is being seen, because the cloth
is damp and has been in contaminated
condition and is torn and no note is marked
on it. In the polythene there are 5 pants and
5 shirts which are in wet condition.

***

111. Today I cannot say that in
what colour bag the rest of the substance
was packed in the bag. The material which
was seized from Vijay Jain, out of it two
samples 25-25 gm were made and marked
B-1 and B-2 which were shown to the
witness when he said that they were taken
out from the material found with Vijay Jain
on site. No other packet except the two
samples and rest of material were made on
the site. The said both packets which have
been submitted in the court are sealed and
on them the seizure chit is not affixed
showed the B-1 and B-2 packet and asked
that the seal of police station is affixed then
the witness said the seal of police station is
affixed then the witness said that it is the
seal of the Tahsildar, Indore. Leaving aside
rest of the substance and mobile the other
seized material from Vijay is submitted in
the court. This is true that I had not given
the mobile for sealing to the Incharge of
stores. Today I cannot say where that
mobile is."

Thus the only evidence before the
court was that in the suitcase in which the
contraband goods were allegedly kept when
opened, there was only a big packet
wrapped in cloth and the cloth was torn
and there was a blue-coloured polythene in
which there were clothes. There is no
mention in the evidence of PW 11 of any
brown sugar having been found in the
suitcase. There is, however, evidence that
samples were prepared of 25-25 gm which
were shown to the witnesses and were
marked B-1 and B-2 but we find that PW 3
has stated before the court in his
examination that these samples were not
prepared in his presence and PW 2 has
stated before the court that the witnesses
were not taken to the site where the
materials were seized.

12.We are thus of the view that as
the prosecution has not produced the brown
7 All. Liyaqat Ali Vs. State of U.P.
15
sugar before the Court and has also not
offered any explanation for non-production
of the brown sugar alleged to have been
seized from the appellants and as the
evidence of the witnesses (PW 2 and PW 3)
to the seizure of the materials does not
establish the seizure of the brown sugar
from the possession of the appellants, the
judgment of the trial court convicting the
appellants and the judgment of the High
Court maintaining the conviction are not
sustainable.

13.In the result, we allow these
appeals and set aside the impugned
judgment of the trial court as well as the
High Court. The appellants are stated to be
in jail. They shall be released forthwith if
not required in connection with any other
case."

5) Jitendra Vs. State of M.P.,
(2004) 10 SCC 562 and has referred
paragraph 6,9 and 10 which are quoted
herein:-

"6.In our view, the view taken by
the High Court is unsustainable. In the trial
it was necessary for the prosecution to
establish by cogent evidence that the
alleged quantities of charas and ganja were
seized from the possession of the accused.
The best evidence would have been the
seized materials which ought to have been
produced during the trial and marked as
material objects. There is no explanation
for this failure to produce them. Mere oral
evidence as to their features and production
of panchnama does not discharge the heavy
burden which lies on the prosecution,
particularly where the offence is punishable
with a stringent sentence as under the
NDPS Act. In this case, we notice that
panchas have turned hostile so the
panchnama is nothing but a document
written by the police officer concerned. The
suggestion made by the defence in the
cross-examination is worthy of notice. It
was suggested to the prosecution witnesses
that the landlady of the house in collusion
with the police had lodged a false case only
for evicting the accused from the house in
which they were living. Finally, we notice
that the investigating officer was also not
examined. Against this background, to say
that, despite the panch witnesses having
turned hostile, the non-examination of the
investigating officer and non-production of
the seized drugs, the conviction under the
NDPS Act can still be sustained, is farfetched.

9.Taking the cumulative effect of
all the circumstances, it appears to us that
the material placed on record by the
prosecution does not bring home the charge
beyond reasonable doubt. We are of the
view that upon the material placed on
record it would be unsafe to convict the
appellants. They are certainly entitled to
the benefit of doubt.

10.In the result, we allow the
appeals, set aside the judgment of the High
Court and the trial court and quash the
conviction of the appellants. The appellant
Jitendra is directed to be released from
custody forthwith, if not required in any
other case."

6) Ashok @ Dangra Jaiswal,
(2011) 5 SCC 123 and has referred
paragraphs 10, 11, 12 and 13 which are
quoted herein:-

"10.The seizure of the alleged
narcotic substance is shown to have been
made on 8-3-2005, at 11.45 in the evening.
The samples taken from the seized
substance were sent to the FSL on 10-32005, along with the draft, Ext. P-31. The
samples sent for forensic examination were,
however, not deposited at the FSL on that
date but those came back to the police
station on 12-3-2005 due to some mistake
in the draft or with some query in respect of
the draft. The samples were sent back to the
16 INDIAN LAW REPORTS ALLAHABAD SERIES
FSL
on
14-3-2005,
after
necessary
corrections in the draft and/or giving reply
to the query and on that date the samples
were accepted at the FSL. From the time of
the seizure in the late evening of 8-3-2005,
till their deposit in the FSL on 14-3-2005, it
is not clear where the samples were laid or
were handled by how many people and in
what ways.

11.The FSL report came on 21-32005, and on that basis the police
submitted charge-sheet against the accused
on 31-3-2005, but the alleged narcotic
substance that was seized from the accused,
including the appellant was deposited in
the malkhana about two months later on
28-5-2005. There is no explanation where
the seized substance was kept in the
meanwhile.

12.Last but not the least, the alleged
narcotic powder seized from the possession
of the accused, including the appellant was
never produced before the trial court as a
material exhibit and once again there is no
explanation for its non-production. There
is, thus, no evidence to connect the forensic
report with the substance that was seized
from the possession of the appellant or the
other accused.

13.It may be noted here that in
Jitendra v. State of M.P. [(2004) 10 SCC
562 : 2004 SCC (Cri) 2028] , on similar
facts this Court held that the material
placed on record by the prosecution did not
bring home the charge against the accused
beyond reasonable doubt and it would be
unsafe to maintain their conviction on that
basis. In Jitendra [(2004) 10 SCC 562 :
2004 SCC (Cri) 2028] , the Court observed
and held as under: (SCC pp. 564-65, paras
5-6)

"5. The evidence to prove that
charas and ganja were recovered from the
possession of the accused consisted of the
evidence of the police officers and the
panch witnesses. The panch witnesses
turned hostile. Thus, we find that apart
from the testimony of Rajendra Pathak (PW
7), Angad Singh (PW 8) and Sub-Inspector
D.J. Rai (PW 6), there is no independent
witness as to the recovery of the drugs from
the possession of the accused. The charas
and ganja alleged to have been seized from
the possession of the accused were not even
produced before the trial court, so as to
connect them with the samples sent to the
forensic science laboratory. There is no
material produced in the trial, apart from
the interested testimony of the police
officers, to show that the charas and ganja
were seized from the possession of the
accused or that the samples sent to the
forensic science laboratory were taken from
the drugs seized from the possession of the
accused. Although the High Court noticed
the fact that the charas and ganja alleged
to have been seized from the custody of the
accused had neither been produced in the
court, nor marked as articles, which ought
to have been done, the High Court brushed
aside the contention by observing that it
would not vitiate the conviction as it had
been proved that the samples were sent to
the chemical examiner in a properly sealed
condition and those were found to be
charas and ganja. The High Court
observed,
'non-production
of
these
commodities before the court is not fatal to
the prosecution. The defence also did not
insist
during
the
trial
that
these
commodities should be produced'. The
High Court relied on Section 465 CrPC to
hold that non-production of the material
object was a mere procedural irregularity
and did not cause prejudice to the accused.

6. In our view, the view taken by
the High Court is unsustainable. In the trial
it was necessary for the prosecution to
establish by cogent evidence that the
alleged quantities of charas and ganja were
7 All. Liyaqat Ali Vs. State of U.P.
17
seized from the possession of the accused.
The best evidence would have been the
seized materials which ought to have been
produced during the trial and marked as
material objects. There is no explanation
for this failure to produce them. Mere oral
evidence as to their features and production
of panchnama does not discharge the heavy
burden which lies on the prosecution,
particularly where the offence is punishable
with a stringent sentence as under the
NDPS Act. In this case, we notice that
panchas have turned hostile so the
panchnama is nothing but a document
written by the police officer concerned. The
suggestion made by the defence in the
cross-examination is worthy of notice. It
was suggested to the prosecution witnesses
that the landlady of the house in collusion
with the police had lodged a false case only
for evicting the accused from the house in
which they were living. Finally, we notice
that the investigating officer was also not
examined.