The Allahabad High Court (Lucknow Bench) has set aside the conviction of two individuals, Kamlesh and Munna, in a case involving the recovery of illicit opium. The High Court ruled that the prosecution failed to establish its case beyond reasonable doubt due to significant procedural lapses, including the non-compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act and the premature filing of a charge sheet before obtaining a forensic report.
Justice Pramod Kumar Srivastava, while allowing the criminal appeals, observed that the mandate of Section 50 is not an empty formality but a substantive safeguard that requires strict adherence.
Background of the Case
The case originated on January 17, 2000, when police personnel from the Kothi Police Station in Barabanki acted on a special informer’s tip. Near Village Birapur, they intercepted three individuals—Kamlesh, Munna, and Paridin—who were allegedly purchasing opium.
The prosecution claimed that upon a personal search, 500 grams of opium were recovered from a polythene bag inside a gamchha (towel) tied around Kamlesh’s waist, 1 kilogram from a polythene bag under Munna’s armpit, and 400 grams from a bag held by Paridin. On August 21, 2007, the Additional Sessions Judge, Fast Track Court No. 30, Barabanki, convicted Kamlesh and Munna under Section 8/18 of the NDPS Act. Paridin passed away during the pendency of the appeal.
Arguments of the Parties
The counsel for the appellants argued that Section 50 of the NDPS Act, which provides the right to be searched before a Magistrate or a Gazetted Officer, was not complied with. They further pointed out that the charge sheet was filed on January 21, 2000, just one day after the contraband was sent for chemical examination, without waiting for the Forensic Science Laboratory (FSL) report. They also highlighted the absence of independent public witnesses and the lack of signatures of the accused on the sealed samples.
The State (Respondent) maintained that the trial court’s judgment was reasoned and that the recoveries did not fall under the category of “personal search” because the opium was found in polythene bags, thus making Section 50 inapplicable.
Court’s Analysis and Observations
The High Court focused on two primary issues: the applicability of Section 50 and the fairness of the investigation.
1. Applicability of Section 50 The High Court noted that for appellant Kamlesh, the contraband was in a gamchha tied around his waist, which constitutes an integral part of his clothing. Citing the three-judge bench decision in State of H.P. v. Pawan Kumar (2005), the court held that this was a “personal search,” mandating compliance with Section 50.
Regarding the “Joint Option” given to the accused, the High Court stated:
“In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50… The communication of this right has to be clear, unambiguous and individual.”
The High Court further noted that the police merely offered an “option” rather than informing the accused of their “statutory right,” referencing Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) to emphasize that strict compliance is mandatory and “substantial compliance” is insufficient.
2. Investigative Lapses The High Court expressed concern over the “casual and mechanical” approach of the investigation. The charge sheet was filed on January 21, 2000, while the incident occurred on January 17. The High Court remarked:
“The prompt submission of the charge-sheet on 21.01.2000, merely one day after the alleged contraband was sent for chemical examination on 20.01.2000, critically undermines the prosecution’s case. In NDPS Act offenses, the substance’s nature is a foundational element, and filing a charge-sheet without the requisite forensic report reflects a casual and mechanical investigatory approach…”
Other noted lapses included the failure to obtain signatures or thumb impressions of the accused on the sample packets, which the High Court said “destroys the sanctity of the seizure,” and the absence of independent witnesses despite the arrest occurring in a village.
The Decision
The High Court concluded that the cumulative effect of these infirmities created serious doubt about the prosecution’s version. The High Court granted the benefit of doubt to both appellants, noting that the trial court failed to give attention to the procedural lapses apparent on the face of the record.
The judgment and order dated August 21, 2007, were set aside, and Kamlesh and Munna were acquitted of the charges under Section 8/18 of the NDPS Act. Their bail bonds were cancelled, and they were discharged of their sureties.
- Case Name: Munna vs. State of U.P. (Criminal Appeal No. 1937 of 2007) along with Kamlesh vs. State of U.P. (Criminal Appeal No. 1992 of 2007)
