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2021 (1) TMI 1053 - HC - Indian LawsSmuggling - contraband narcotics - compliance of Section 50 of the Act or not? - HELD THAT:- Admittedly, the said contraband narcotic was recovered from personal search of appellant Munnan, concealed in his belly region below kurta and lunghi, worn by him. In addition to above, consent memo (Ex.Ka.4) was prepared in presence of police party and appellant Munnan. According to prosecution, the said recovery was made by S.I. Narendra Singh Yadav (PW-4) in presence of S.I. Kripa Shankar Dixit, S.I. Mukhram Yadav (PW-3), Constable 194 Chandrika Prasad and Constable Kamlesh Mishra (PW-2) who have put their signatures on recovery memo (Ex.Ka.5) but the consent memo (Ex.Ka.4), prepared by S.I. Kripa Shankar Dixit does not show the signature either of S.I. Mukhram Yadav (PW-3) or Const. Chandrika Prasad or Const. Kamlesh Mishra (PW-2). Mukhram Yadav (PW-3) has stated that the said consent memo (Ex.Ka.4) was prepared by S.I. Kripa Shankar Dixit which was read over to the appellant and thereafter the appellant put his thumb impression and S.I. Kripa Shankar Dixit had also put his signature. This witness has not stated that Narendra Singh Yadav (PW-4) had also put his signature on this consent memo (Ex.Ka.4), whereas, Narendra Singh Yadav has stated that on consent memo (Ex.Ka.4), prepared by S.I. Kripa Shankar Dixit, he had also put his signature - Admittedly, S.I. Kripa Shankar Dixit, who was star witness of the prosecution, who prepared the consent memo (Ex.Ka.4) and recovery memo (Ex.Ka.5) and the said recovery was made in his presence has not been examined by the prosecution and the prosecution has also not given any explanation, as to why, this important witness was not examined. Thus, in view of the above, the consent for search, given by the appellant, before his personal search as well as the preparation of consent memo is also doubtful. The prosecution has failed to prove the compliance of mandatory provision of Section 50 of the Act, whereby the prosecution story as well as said recovery, becomes doubtful. The prosecution has miserably failed to prove its case beyond reasonable doubt, against the appellant. The trial Court, without considering, the compliance of mandatory provision of N.D.P.S Act, has passed the said impugned judgment and order in cursory manner which is liable to be set aside - appellant is on bail. His bail bonds are cancelled and sureties are discharged - Appellant is acquitted and the appeal is allowed.
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