The Allahabad High Court, in a significant judgment, has acquitted Mohd. Yusuf, who was previously convicted under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, emphasizing the importance of mandatory compliance with Section 50 of the Act. The court’s decision in Criminal Appeal No. 1305 of 2006 highlights the critical nature of procedural safeguards in NDPS cases.
Background of the Case
The case originated from an incident on July 13, 2006, when Sub Inspector Arvind Kumar, acting on a tip-off, apprehended Mohd. Yusuf near RPM Quarter Line. The police claimed to have recovered 30 packets of smack from Yusuf’s possession, leading to his arrest under Sections 8/18/21 of the NDPS Act. The Additional Sessions Judge, F.T.C.-VII, Lucknow, convicted Yusuf and sentenced him to three months imprisonment along with a fine of Rs. 2,000.
Legal Issues and Court’s Decision
The primary legal issues in this case revolved around:
1. Compliance with Section 50 of the NDPS Act
2. Reliability of police witnesses
3. Absence of independent witnesses
Justice Shamim Ahmed, who presided over the case, made several crucial observations:
1. Mandatory Compliance with Section 50: The court emphasized that Section 50 of the NDPS Act, which requires the accused to be informed of their right to be searched before a Gazetted Officer or Magistrate, is mandatory and requires strict compliance. Justice Ahmed quoted the Supreme Court’s judgment in Vijaysinh Chandubha Jadeja vs. State of Gujarat (2010), stating:
“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.”
2. Reliability of Police Witnesses: While acknowledging that convictions can be based on police testimony, the court found that in this case, the evidence was not wholly reliable due to procedural lapses.
3. Absence of Independent Witnesses: The court noted the prosecution’s failure to produce independent eye-witnesses of the alleged recovery, considering it a “serious lacuna which has made the prosecution case very doubtful.”
Court’s Decision
Based on these findings, the Allahabad High Court set aside the lower court’s judgment and acquitted Mohd. Yusuf of all charges. Justice Ahmed concluded:
“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… cannot be held as proved beyond reasonable doubt.”
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Parties and Legal Representatives
– Appellant: Mohd. Yusuf
– Respondent: The State of U.P.
– Counsel for Appellant: Atul Verma
– Counsel for Respondent: Government Advocate
