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2026 DAILYLAW 8584 (UTT)

Pappu v. State of Uttarakhand

2026-02-12

Ashish Naithani

body2026
JUDGMENT : Ashish Naithani, J. This Criminal Appeal has been preferred under Section 374 of the Code of Criminal Procedure against the judgment and order dated 27.06.2007 passed by the learned Sessions Judge, Almora in Special Sessions Trial No. 2 of 2004, whereby the Appellant has been convicted under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and has been sentenced to undergo rigorous imprisonment for a period of three years along with a fine of Rs. 10,000/-, with default stipulation. 2. This Court has heard Mr. Ramji Srivastava, learned counsel for the Appellant and Mr. Bhaskar Chandra Joshi, learned AGA for the State, and has perused the entire lower court record. 3. The case, in brief, is that, a police party allegedly apprehended the Appellant and, upon search, is stated to have recovered from his possession a bag containing ganja. It is the case of the state that the recovered contraband was weighed and its quantity was found to be 20 kilograms. 4. On the basis of the aforesaid alleged recovery, a First Information Report was lodged against the Appellant and investigation commenced. After completion of investigation, a charge-sheet was submitted against the Appellant for the offence punishable under Section 8/20 of the NDPS Act. 5. The Appellant was put to trial before the Court of the Special Judge/Sessions Judge, Almora in Special Sessions Trial No. 2 of 2004. 6. The learned trial court, after appreciating the evidence on record, convicted the Appellant under Section 8/20 of the NDPS Act and sentenced him in the manner indicated above. 7. Aggrieved by the said judgment and order of conviction and sentence, the present criminal appeal has been filed. 8. The appeal is of the year 2007 and the order-sheet reflects that at different stages the Appellant remained absent, non-bailable warrants were issued and bonds were forfeited. Ultimately, in order to ensure that the appeal is decided on merits, this Court appointed learned Amicus Curiae to assist the Court, and the appeal has now been finally heard. 9. Learned counsel appearing for the Appellant assailed the impugned judgment and order of conviction on multiple grounds. 10. Ultimately, in order to ensure that the appeal is decided on merits, this Court appointed learned Amicus Curiae to assist the Court, and the appeal has now been finally heard. 9. Learned counsel appearing for the Appellant assailed the impugned judgment and order of conviction on multiple grounds. 10. It was submitted that the alleged search and recovery is vitiated due to non-compliance of the mandatory provisions of Section 50 of the NDPS Act, inasmuch as the Appellant was not informed of his legal right to be searched before a Gazetted Officer or a Magistrate. It was further submitted that although, as per the state itself, public persons were available at or near the place of alleged recovery, no independent public witness was examined by the state, and the entire case rests only upon the testimony of police personnel. It was also contended by learned counsel for the Appellant that the State has failed to establish the case beyond reasonable doubt in respect of the weighment, sampling, sealing and safe custody of the alleged contraband, and therefore, the possibility of tampering cannot be ruled out. 11. Learned counsel further submits that the trial court itself has recorded observations creating doubt about the State version, yet has proceeded to convict the Appellant, which, according to learned counsel, is legally unsustainable. 12. It is argued that the burden placed upon the State in cases under the NDPS Act is very strict, and in the present case, the State has failed to prove its case in accordance with the mandatory statutory requirements. 13. On the cumulative strength of the aforesaid submissions, it is contended that the conviction of the Appellant is unsustainable in law and the Appellant is entitled to be acquitted by giving him the benefit of doubt. 14. Per contra, learned AGA appearing for the State supported the impugned judgment and order of conviction. It is submitted that the Prosecution witnesses have consistently supported the recovery and there is no reason to disbelieve their testimony merely on the ground that they are police personnel. It is further argued that the recovery has been duly proved, the contraband was seized, and the state has established its case beyond reasonable doubt. It is also submitted that the trial court has correctly appreciated the evidence on record and has rightly recorded a finding of guilt against the Appellant. 15. It is further argued that the recovery has been duly proved, the contraband was seized, and the state has established its case beyond reasonable doubt. It is also submitted that the trial court has correctly appreciated the evidence on record and has rightly recorded a finding of guilt against the Appellant. 15. On these grounds, learned State counsel prays that the appeal be dismissed. 16. Heard learned counsel for the Parties and perused the records. 17. It needs to be borne in mind at the outset that offences under the NDPS Act entail severe penal consequences and, therefore, the statute itself as well as the consistent judicial pronouncements of the Hon’ble Supreme Court require strict and scrupulous compliance with the procedural safeguards provided therein. 18. The burden upon the State in cases under the NDPS Act is much heavier than in ordinary criminal cases. Before the statutory presumptions can operate, the state must first establish, beyond reasonable doubt, that the search, seizure and recovery were conducted strictly in accordance with law and that the sanctity of the seized contraband remained intact from the time of recovery till its production and examination. 19. One of the principal contentions raised on behalf of the Appellant is regarding non-compliance of Section 50 of the NDPS Act. Section 50 confers a valuable right upon a person about to be searched, namely, the right to be informed that he can be searched before a Gazetted Officer or a Magistrate. The law in this regard is well settled that this is not an empty formality, but a substantive and mandatory safeguard. 20. From a perusal of the evidence on record, this Court does not find any clear, cogent and convincing material to show that the Appellant was made aware of this legal right in a meaningful manner before the search was conducted. A mere formal or ritualistic assertion by the police witnesses does not satisfy the strict requirement of law. The state has failed to establish that the Appellant was informed that he had a right to be searched before a Gazetted Officer or a Magistrate and that such right was consciously waived by him. 21. The failure to establish due compliance of Section 50 of the NDPS Act, in itself, goes to the root of the state case and renders the alleged recovery legally suspect. 22. 21. The failure to establish due compliance of Section 50 of the NDPS Act, in itself, goes to the root of the state case and renders the alleged recovery legally suspect. 22. Apart from the above, the Court also finds substance in the submission relating to absence of independent public witnesses. The state case itself indicates that the alleged recovery was made from a place where public persons were available. Yet, no independent witness has been examined to support the search and recovery. 23. It is true that testimony of police personnel cannot be discarded merely on the ground of their official status. However, in a case under the NDPS Act, where the consequences are drastic and the statutory safeguards are stringent, the absence of any independent corroboration, despite availability of such witnesses, is a circumstance which calls for greater caution and closer scrutiny. 24. The Court also finds that the state evidence regarding weighment, sampling, sealing and custody of the seized contraband is not free from doubt. The link evidence required to establish that the very same contraband, allegedly recovered from the Appellant, was sent for forensic examination and produced before the Court in an untampered condition, has not been established with the degree of certainty required under law. 25. The sanctity of the seized material is the very foundation of a conviction under the NDPS Act. Any reasonable doubt in the chain of custody must necessarily enure to the benefit of the accused. 26. A perusal of the impugned judgment also reveals that the learned trial court itself has noticed certain infirmities and doubtful aspects in the state case, yet has proceeded to record a finding of guilt. Once the Court finds that the state version is not free from doubt, the only course open in criminal jurisprudence is to extend the benefit of doubt to the accused. 27. In criminal law, and more so under a statute like the NDPS Act, the standard is not one of “may be true” but of “must be true”. The state must stand on its own legs and must establish its case beyond reasonable doubt, strictly in accordance with law. 28. 27. In criminal law, and more so under a statute like the NDPS Act, the standard is not one of “may be true” but of “must be true”. The state must stand on its own legs and must establish its case beyond reasonable doubt, strictly in accordance with law. 28. Having regard to the cumulative effect of: (i) the failure of the state to establish due compliance of Section 50 of the NDPS Act, (ii) the absence of independent public witnesses despite their availability, and (iii) the infirmities in the proof regarding safe custody and identity of the seized contraband, this Court is of the considered opinion that the state has failed to prove its case against the Appellant beyond reasonable doubt. The Appellant, therefore, is entitled to the benefit of doubt. ORDER The appeal is allowed. The judgment and order dated 27.06.2007 passed by the learned Sessions Judge, Almora in Special Sessions Trial No. 2 of 2004, whereby the Appellant had been convicted under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for three years along with fine of Rs. 10,000/-, are hereby set aside. The Appellant is acquitted of the charge under Section 8/20 of the NDPS Act. The Appellant shall be released forthwith, if not required in any other case. The bail bonds, if any, shall stand discharged. Let a copy of this judgment be transmitted to the court concerned for necessary compliance.