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2017 (12) TMI 1510 - ALLAHABAD HIGH COURTSmuggling - Heroin - Sections 21 of NDPS Act - whether, in the light of evidence on record, compliance of Section 50 of NDPS Act has been properly made in this case by the prosecution or not? Held that: - It is mandatory for the prosecution to prove that the accused was apprised of his right to be searched in presence of a Magistrate or a Gazetted Officer. In case such right has not been apprised the conviction would vitiate. The compliance of provision of Section 50 of NDPS Act is extremely important right of the accused, non-compliance of which would make the recovery suspect - In the case at hand, it is apparent that the accused was given option of being taken before a Magistrate or a Gazetted Officer for being searched to find whether he possessed any contraband substance - It would be noted here that the provisions of Section 50 have been amended with effect from 2.10.2001 by adding Clause 5 and 6 also, but in this case those clauses would not be operational because the occurrence belongs to the year 1995 when the unamended Act was in force, provisions of which have been reproduced by the learned lower court in judgment - In the case at hand, in the light of evidence on record, it is apparent that the accused was given option to be taken before a Magistrate or a Gazetted Officer as has been stated by both the witnesses of fact i.e. PW-1 and PW-3 and entry in that regard has also been made in the recovery memo, but they certainly had not apprised him about his legal right of being searched before a Magistrate or a Gazetted Officer in right earnest, in letter and spirit, as has been laid-down in the Vijaysinh Chadubha Jadeja's case (Supra) which goes to the extent to lay down that an endevour should be made to produce the suspect before the nearnest Magistrate who enjoys more confidence of common man, hence this Court finds that compliance of section 50 of NDPS Act was not made in right earnest by apprising the accused of his legal right that he could opt to be searched before a Magistrate or a Gazetted Officer, but only such option was given to him, hence the finding of lower court in this regard is found to be erroneous. Whether the prosecution has been able to prove that the alleged recovered contraband (Heroin) from the accused was the same which was sent for being examined by the FSL and was found to be heroin and whether not recording the weight of recovered contraband, would cause prejudice to the accused? - Held that: - when the contraband material from the accused was brought to police station with the accused and the recovery memo along with sample seal, the entry of the same ought to have been proved by the prosecution to have been made in the Malkhana register, to prove that the said contraband material along with the sample seal were deposited in Malkhana and were kept there in safe custody till it was taken out for being sent to the FSL and thereafter also when the same material was received back from the FSL with seal which was used by FSL. The same should have been kept at safe place until at the time of trial, when the case property was supposed to be opened before court for being exhibited. Then only it could have been held that substance which was examined and found to be heroin by the FSL was produced before court at the time of examination of witnesses in intact condition. Therefore, link evidence is found to be missing in this case. Non-compliance of Section 57 of the NDPS Act - Held that: - non-compliance of Section 57 by itself may not be held to vitiate the conviction or trial in this case but certainly it would have adverse impact on probabative value of the evidence adduced by the proseuction. In the case at hand, it has to be taken into consideration and to see whether non-compliance of this provision has caused any prejudice to the accused. Here a very small quantity of heroin is alleged to have been recovered from the accused which can easily be procured and may be planted, hence, looking to the fact that huge penalty has been provided under law under Section 21 of the NDPS Act, therefore, it was strict liability of the prosecution to prove the said recovery genuinely from the accused. For this, they ought to have prepared a report under Section 57 of NDPS Act of arrest of the accused and seizure of the recovered contraband and should have sent it to the superior authority within stipulated time or even beyond that with a proper justification of delay which has not been done. It certainly has caused prejudice to the accused. This court finds that prosecution has failed to adduce proper evidence on record which weakens the prosecution's case. It has not been able to prove its case to the hilt beyond shadow of doubt against the accused regarding illegal recovery of heroin - accused is held not guilty of offense under Section 21 of NDPS Act and deserves to be released forthwith in this case - appeal allowed.
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