Prosecution's failure to comply with mandatory provisions of the NDPS Act leads to dismissal of appeal against acquittal of Mohd. Irfan.
In a significant ruling, the Jammu and Kashmir High Court has upheld the acquittal of Mohd. Irfan, who was previously charged under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for possession of 680 grams of heroin. The division bench, comprising Justices Sindhu Sharma and Shahzad Azeem, dismissed the State's appeal against the trial court's judgment, underscoring the importance of adhering to mandatory legal procedures in narcotics cases.
The case dates back to March 8, 2010, when Mohd. Irfan was apprehended by the police at a naka laid at City Farm, Greater Kailash, with heroin allegedly found in his possession. However, the trial court had acquitted him in 2012, primarily citing the non-compliance with Section 50 of the NDPS Act, which requires that the accused be informed of their right to be searched in the presence of a Gazetted Officer or a Magistrate.
The High Court, while analyzing the appeal, noted that the prosecution's evidence was fraught with inconsistencies. Key contradictions were highlighted regarding the procedure of recovery, the description of the envelope containing the contraband, and the weighing process. Moreover, the court found that the mandatory provision under Section 50 was not observed, as the accused was neither informed of his rights nor was the search conducted in the presence of a Gazetted Officer or Magistrate.
Referring to the precedent set by the Supreme Court in "Vijay Sinh Chandubha Jadeja v. State of Gujarat," the High Court reiterated that strict compliance with Section 50 is indispensable, and any lapse in this regard vitiates the recovery process, rendering any seized contraband inadmissible as evidence.
The judgment also took into account the absence of written information under Section 42 and discrepancies in the testimonies of prosecution witnesses, which further weakened the case against the respondent. Ultimately, the High Court concluded that these procedural lapses justified the trial court's decision to acquit Mohd. Irfan and dismissed the State's appeal as devoid of merit.
This judgment serves as a critical reminder of the procedural safeguards embedded within the NDPS Act, emphasizing the judiciary's commitment to upholding the rule of law and ensuring that justice is not compromised by procedural oversights.
Bottom line:-
Non-compliance with mandatory provisions of Section 50 of the NDPS Act renders the recovery inadmissible in evidence, vitiating the prosecution case.
Statutory provision(s): Section 50, Section 42, Section 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
State of J&K v. Mohd. Irfan, (Jammu And Kashmir)(DB) : Law Finder Doc id # 2914333
