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2017 (12) TMI 1508 - ALLAHABAD HIGH COURTSmuggling - Charas - the accused in his statement recorded under Section 313 Cr.P.C. has denied any such recovery of contraband substance to have been made from him and has stated that he has been falsely implicated due to enmity - Held that: - although the compliance of provisions of Section 57 of NDPS Act is not mandatory but directory. The compliance may be made even with delay with sufficient explanation therefor. The court conducting trial of an accused under the provisions of NDPS Act has to take into consideration whether non-compliance of this provision has resulted in causing prejudice to the accused. If yes, then certainly the benefit may be given to the accused. From the record it apparent that the prosecution has not made compliance of Section 57 of NDPS Act as nothing has come on record indicating that any such arrest and seizure report was prepared in respect of charas having been recovered from him which might have been sent to the higher authority within 48 hours or with delay with any explanation therefor. Hence, this Court is of the view that this certainly would cause prejudice to the accused. Whether the prosecution has been able to prove the recovery of 01kg charas from the accused from the place of occurrence as alleged? - Held that: - the prosecution has failed to establish beyond reasonable doubt that 01kg charas was recovered from accused-appellant, hence without establishing the recovery, the burden under Section 35 & 54 of NDPS Act could not be thrust upon the accused to disclose as to how he came in possession of the said contraband. The court below has failed to take into consideration the infirmities pointed out by this Court in the body of this judgement. It is held that the court below did not make proper appreciation of evidence on record in right perspective particularly with regard to identification of recovered contraband substance (Charas) which is being alleged to have been recovered from the accused on the spot, to be the same, the sample of which has been found by the F.S.L. to be Charas. This being of core importance in this case, the same could not be allowed to be taken lightly. In view of the severe punishment provided under the Act, this aspect ought to have been taken into consideration with all circumspection which appears to be lacking. The appellant is held not guilty of charges under section 20(b)(ii) of NDPS Act. He be released from jail forthwith in this case, if not detained in any other case - The case property/recovered contraband (charas) be destroyed in accordance with rules after the period of appeal, provided if any, expires or if the law provides otherwise - appeal allowed.
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