The Allahabad High Court (Lucknow Bench) has set aside the conviction and ten-year sentence of an accused under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, citing a “flagrant violation” of mandatory procedural safeguards. Justice Brij Raj Singh held that the failure of the Narcotics Department to strictly comply with Section 50 of the Act—pertaining to the right of an accused to be searched before a Gazetted Officer or Magistrate—vitiated the entire search and seizure process.
The Court allowed the appeal filed by Vinai Kumar Sharma, who had been in custody since April 2025 following a period of absconding, and ordered his immediate release.
Background of the Case
The case dates back to November 14, 1994. Acting on a tip-off, a team from the Narcotics Department, Lucknow, intercepted Vinai Kumar Sharma at the Kaiserbagh Bus Station. Upon being searched, 250 grams of heroin was allegedly recovered from a polythene bag kept in the right pocket of his trousers.
On May 28, 1998, the IXth Additional District and Sessions Judge, Lucknow, convicted Sharma under Sections 8/21 of the NDPS Act, sentencing him to ten years of rigorous imprisonment and a fine of ₹1 lakh. The appellant challenged this order in 1998 but subsequently absconded, leading to his arrest decades later on April 8, 2025.
Arguments of the Parties
The Counsel for the appellant, led by Mr. Rishad Murtaza, argued that the mandatory provisions of Section 50 of the NDPS Act were not followed. They contended that the “offer” made to the accused regarding his search was partial and misleading, as he was not clearly informed of his legal right to be searched specifically before a Gazetted Officer or a Magistrate. It was further argued that no independent witnesses were associated with the recovery, despite the search occurring in a busy public place like a bus station.
Conversely, Mr. Rakesh Kumar Awasthi, representing the Union of India (Narcotics Department), maintained that the recovery was genuine and that the procedural requirements were substantially met. They pointed out that the accused had consented to the search by the departmental team and that the recovery of a commercial quantity of heroin justified the conviction.
Court’s Analysis and Observations
The High Court focused primarily on the “communicated right” under Section 50. Justice Brij Raj Singh observed that the notice given to the accused (Exhibit Ka-1) merely asked if he wanted to be searched by the present team or if he wanted to “call” a Gazetted Officer or Magistrate.
The Court noted:
“The search was conducted in a very casual manner… it is well settled that if a person is not informed about his right that he can be searched before a Gazetted Officer or a Magistrate, the search will be vitiated.”
Referring to the Supreme Court’s Constitution Bench judgment in State of Punjab Vs. Baldev Singh, the Court emphasized that Section 50 is mandatory. The Court found that the department failed to prove that the accused was made aware of his “indisputable right” to be searched by the specified authorities.
Furthermore, the Court criticized the lack of independent witnesses. The judgment noted:
“It is admitted by the prosecution that the place of occurrence is Kaiserbagh Bus Station which is a very crowded place and thousands of people are coming and going, but the prosecution has not joined any independent witness… this creates a doubt on the prosecution story.”
The Court also highlighted discrepancies regarding the “Form-F” (the document used to send samples to the laboratory), noting that the prosecution failed to prove which seal was used on the samples, thereby breaking the link in the chain of evidence.
The Decision
The Court concluded that the prosecution failed to establish the case beyond a reasonable doubt. It held that the search was conducted in violation of Section 50 of the NDPS Act and that the evidence regarding the sealing and sampling of the contraband was unreliable.
“In view of the aforesaid discussion, I am of the opinion that the prosecution has failed to prove the case beyond reasonable doubt and the trial Court has missed the legal aspect and the evidence,” Justice Brij Raj Singh ruled.
The judgment and order dated May 28, 1998, were set aside. The Court directed the trial court to issue a release order immediately, provided the appellant is not wanted in any other case. The Court also placed on record the assistance rendered by Mr. Ankur Garg, Research Associate.
Case Details
- Case Title: Vinai Kumar Sharma vs. Union of India
- Case Number: CRIMINAL APPEAL No. 435 of 1998
- Court: Allahabad High Court (Lucknow Bench)
- Judge: Justice Brij Raj Singh
- Counsel for Appellant: Rishad Murtaza, A. Zaidi, Kunwar Sushant Prakash, Mohd. Arif Khan, Prince Lenin
- Counsel for Respondent: Rakesh Kumar Awasthi, S.M. Singh Royekwar
