# Mohd. Yusuf v. The State of U.P

- **Citation:** (2024) 7 ILRA 1101
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-24
- **Case number:** Criminal Appeal No. 1305 of 2006
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-yusuf-v-the-state-of-u-p-52185
- **Pages:** 5

## Headnote

Criminal Law - The Narcotic Drugs
and
Psychotropic
Substances
Act,
1985 - Sections 8, 18 & 21-Appellant
has been convicted and sentenced for
three months-admittedly, the prosecution
has
not
produced
independent
eyewitnesses of the alleged recovery-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-
prior
to
Appellant's
search-he was not produced before any
Gazetted
Officer
or
Magistrate-written
consent of the appellant for his search
not produced-as required by Section 50 of
N.D.P.S. Act-prosecution case not wholly
reliable, cannot be held as proved beyond
reasonable
doubt-impugned
order
set
aside and reversed.

Appeal allowed. (E-9)

List of Cases cited:

## Text

7 All. Mohd. Yusuf Vs. The State of U.P.
1101
impugned orders dated 08.06.2022 and
27.06.2022,
aforesaid,
in
favour
of
appellant, forthwith.

30. No order as to costs.
----------
(2024) 7 ILRA 1101
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.07.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1305 of 2006

Mohd. Yusuf ...Appellant
Versus
The State of U.P. ...Respondent

Counsel for the Appellant:
Atul Verma

Counsel for the Respondent:
G.A.

Criminal Law - The Narcotic Drugs
and
Psychotropic
Substances
Act,
1985 - Sections 8, 18 & 21-Appellant
has been convicted and sentenced for
three months-admittedly, the prosecution
has
not
produced
independent
eyewitnesses of the alleged recovery-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-
prior
to
Appellant's
search-he was not produced before any
Gazetted
Officer
or
Magistrate-written
consent of the appellant for his search
not produced-as required by Section 50 of
N.D.P.S. Act-prosecution case not wholly
reliable, cannot be held as proved beyond
reasonable
doubt-impugned
order
set
aside and reversed.

Appeal allowed. (E-9)

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

(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. his appeal has been preferred
against the judgment and order dated
13.07.2006 passed by learned Additional
Sessions Judge, F.T.C.-VII, Lucknow in
Sessions Trial No.176 of 2002, whereby the
appellant has been convicted and sentenced
for three months imprisonment for the
offence under Section 8/18/21 of NDPS Act
alongwith fine of Rs.2,000/-

4. The prosecution story, in brief,
as disclosed in the first information report,
is the Sub Inspector Arvind Kumar got an
information from a reliable source that a
man is selling smack near RPM Quarter
Line, therefore, he alongwith some police
personnel went to search him. The police
party caught that man and on being asked
his name, he told his name as Mohd.Yusuf.
On being searched, 30 packets of smack
were recovered from his possession. On the
basis of aforesaid incident, Case Crime
No.176 of 2002, under Sections 8/18/21 of
N.D.P.S. Act was registered at Police
Station Alambagh, District Lucknow.

5. Investigation was handed over
to the Sub Inspector K.K. Yadav, who in
turn got the sample chemically examined
and received a report. He took the
1102 INDIAN LAW REPORTS ALLAHABAD SERIES
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 8/18/21 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 S.I. Arvind
Kumar as P.W.-1, Constable Hasan Afroz as
P.W.-2, Sughar Singh as P.W.-3 and K.K.
Yadav, S.I. 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.

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 for three months
imprisonment for the offence under Section
8/18/21 of NDPS Act alongwith fine of
Rs.2,000/-.

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
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
7 All. Mohd. Yusuf Vs. The State of U.P.
1103
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 subsection (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 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
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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
7 All. Amit Bajpai Vs. State of U.P. & Ors.
1105
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 S.I. Arvind Kumar as
P.W.-1, Constable Hasan Afroz as P.W.-2,
Sughar Singh as P.W.-3 and K.K. Yadav,
S.I. 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. S.I. Arvind Kumar as
P.W.-1, Constable Hasan Afroz as P.W.-2,
Sughar Singh as P.W.-3 and K.K. Yadav,
S.I. 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
13.07.2006 passed by learned Additional
Sessions Judge, F.T.C.-VII, Lucknow in
Sessions Trial No.176 of 2002 arising out
of Case Crime No.176 of 2002, under
Sections 8/18/21 of N.D.P.S. Act, Police
Station Alambagh, District Lucknow, is set
aside and reversed and accused/appellant,
namely, Mohd.Yusuf 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 trial court record be sent
immediately to the Trial Court concerned
for necessary compliance.

25. No order as to the costs.
----------
(2024) 7 ILRA 1105
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.07.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1626 of 2024

Amit Bajpai ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Nadeem
Murtaza,
Harsh
Vardhan
Kediya,
Vaibhav Pandey, Wali Nawaz Khan

Counsel for the Respondents:
G.A., Arvind Kumar Verma

(A) Criminal Law - appeal - Scheduled
Castes & Scheduled Tribes (Prevention of
Atrocities) Act - Sections 14-A (2) &
3(2)(V) - Indian Penal Code, 1860 -
Sections 302, 324, 504, 506 & 307 - Bail
Application - Grant of Bail - Appellant
attacked
and
assaulted
by
multiple