Arif Khan @ Agha Khan - Versus - State of Uttarakhand

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PARTIES:

Appellant: Arif Khan @ Agha Khan

Respondent: State of Uttarakhand

JUDGEMENT:

In the light of the present discussion, the appeal succeeds and is allowed. The judgment in question was set aside. As a consequence, the appellant's conviction was set aside and he was acquitted of the impugned charges.

FACTS:

1. The accused had filed for this appeal against the final judgement by the High Court of Uttaranchal dated 26.06.2006, where the High Court confirmed the judgement passed by the Additional Sessions Signature Not Verified Digitally which was signed by Asha Sundriyal Judge, Fast Track Court II, reason:

2. Special Session Trial No. 20 of 2003 by which the accused (appellant) was declared guilty of the offence punishable under S.20 of the NDPS Act, 1985 and sentenced him to 10 years of rigorous jail time and a fine of Rs. 1,00,000.

3. A few facts involved in the appeal are mentioned below.

4. An unknown informant gave a secret information in P.S. Kichha on 22.11.2002, that a person is travelling in a roadways bus and is in possession of some contraband articles. The secret information was also given by the secret informant that the person will get off the bus near the railway crossing and will approach towards a place called “Chowki Pul Bhatta” along with contraband article.

5. SHO-Harish Mehra was heading the raiding party. He along with the police officials on duty left for the place told by the informant.

6. After waiting for sometime at the informed place, the raiding party spotted the person concerned and had him intercepted.

7. When the raiding party asked the accused, if he’s in possession of contraband articles, he admitted that he’s in possession of contraband (charas). A police official told him about his legal rights to be searched in presence of a Magistrate or a Gazetted officer while he was apprehended, but he replied that he had faith on the raiding police party and consented to be searched by them.

8. The accused gave his consent in writing to be searched by the raiding police party. The accused was searched and was found with 2.5 kg of contraband on his body

9. After this incident, the prosecution did the investigation and filed a charge sheet against the appellant and examined 5 witnesses to bring home the charge levelled against the appellant.[1]

10. By order dated 09.11.2004, Special Session Trial No. 20 of 2003 by which the accused (appellant) was declared guilty of the offence punishable under S.20 of the NDPS Act, 1985 and sentenced him to 10 years of rigorous jail time and a fine of Rs. 1,00,000.

11. The accused was resentful and filed an appeal in the High Court. The High Court dismissed the appeal and held the order of Additional Sessions Judge, which led the appellant to file for the present appeal in the Supreme Court by way of special leave.

12. Heard Mr. J.C. Gupta, learned senior counsel for the appellant (accused) and Mr. Ashutosh Kumar Sharma, learned counsel for the respondent-State.[2]

13. Learned counsel for the accused while attacking the legality and correctness of the judgement in question, claimed that both the courts have made mistake in holding the appellant guilty of the offence committed and made a mistake convicting him for the alleged offence under NDPS Act.

14. Learned council claimed that the prosecution did not ensure mandatory compliance of S.50 of the NDPS Act because the alleged recovery of contraband from accused’s body made by the raiding police party was not according to the procedure prescribed by the S.50 of NDPS Act which is mandatory according to Vijaysinh Chandubha Jadeja vs. State of Gujarat.[3]

15. Learned counsel claimed that the research/recovery should have been done in the presence of a Gazetted Officer or a Magistrate only.

16. The learned counsel persuaded that the prosecution admittedly did not make the research/recovery of contraband from the appellant in the presence of a Gazetted Official or a magistrate and alleged that the recovery of contraband from the appellant is illegal being in breach of requirements of S.50 of NDPS Act thereby, entitling the appellant for a clean-slate from the charges

17. Now, the question was raised that the appeal for the procedure of S.50 of NDPS Act was followed by the raiding police party.

18. The Lordships held that the requirements of S.50 of the NDPS Act are mandatory and must be strictly complied with.

REFERENCES