This Case Commentary is written by Kotla Shiva Kumar, a Law Graduate of Central University of Haryana

INTRODUCTION:

In this case, Arif Khan @ Agha Khan v/s State of Uttarakhand the accused has filed this appeal against the final judgment and order in Cr App No. 368 of 2004 issued by the High Court of Uttarakhand Nainital on June 26, 2006. The High Court upheld the decision and order from November 9, 2004, made by the Add Sessions Judge of FastTrack Court II, Udam Nagar, in Spl Sessions, wherein the appellant-accused was found guilty of an offense punishable under the sec 20 of Ndps, 1985 and was sentenced to ten years of imprisonment and a fine of one lakh rupees.

FACTS of CASE:

On November 23, 2002, the police station of Kichha received confidential information from an unidentified source stating that a person was traveling in a highway bus while

Carrying certain illegal goods. The confidential source further said that the individual in question would disembark from the bus close to the railway crossing and proceed in the direction of a location known as "Chowki Pul Bhatta" while carrying illegal items.

Along with the on-duty police officers, the raiding group led by SHO named Harish Mehra, who was working at the police station of Kichha, departed for the location. The police officers on duty at the police station of Kichha, together with the raiding squad led by SHO named Harish Mehra, departed for the location disclosed by the informant.

After waiting for a while at the location they had been told, the raiding party saw the individual in question making his way toward the location they had been told.

The guy in question was apprehended by the raiding team. The raiding party's police officers then questioned the accused about whether he had any illegal "Charas." The defendant acknowledged having "Charas" on him.

The accused said that he had trust in the raiding police team and gave his agreement to be searched by them when the police informed him that he had a legal right to be searched in front of a Gazetted Officer or a Magistrate. As such, the raiding police SHO got his written approval before searching. After the accused was searched by the storming police unit, "Charas," which weighed around 2.5 kg, was taken from his body.

This event led to the prosecution of the appellant (accused) in Special Sessions Trial No. 20/2003 for committing an offense covered by sec 20 of Ndps. Following an investigation, the prosecution filed a charge sheet against the appellant and questioned five witnesses to prove the allegation made against him.

By order dated November 9, 2004, the Adl Sessions Judge/Fast Track Court II, Udam Nagar, determined that the prosecution had proven the case against the appellant beyond a reasonable doubt. As a result, the appellant was found guilty of offenses covered by sec 20 of Ndps, and he was sentenced to ten years of harsh prison time and a fine of Rs. one million rupees.

ISSUES RAISED:

1. The legality of search and seizure was one of many concerns brought up in the appeal of the prosecution's witnesses' reliability and how the illegal material was handled.?

2. Here question raised by the court is whether the inquiry in this case concerns the prosecution complied with the obligatory process under sec 50 of Ndps when conducting the search and seizure of the contraband, or "Chara’s," from the appellant.?

CONTENTIONS OF APPELANT:

1. Heard Mr. Adv Ashutosh Kr Sharma, learned counsel for the respondent of, state and Mr.Adv JC. Gupta learned senior counsel for the.

2. In challenging the validity and accuracy of the challenged decision, the appellant's (accused) learned attorney argued that it was incorrect for both lower courts to find the appellant guilty of committing the relevant offense and, as a result, to convict him for the purported offense under the Ndps.

3. In regards to the allegation that the confiscation and examination of contraband (Charas) from the appellant's body by the raiding police party did not follow the process outlined in sec 50 of Ndps, learned counsel contended that the prosecution has not made sure that this sec of law is mandatorily followed, as this Court decided in a case.

4. the event led to the prosecution of the appellant (accused) in Special Sessions Trial No. 20/2003 for committing an offense covered by Sec (20) of Ndps. Following an examination, the prosecution presented the charge sheet against the appellant and questioned five witnesses to prove the allegation made against him.

CONTENTIONS OF RESPONDENT:

1. Learned counsel argued that the purported contraband should only have been retrieved from the appellant in the presence of a gazetted officer or magistrate.

2. In response, knowledgeable counsel representing the respondent (State) argued in favour of the logic and conclusion drawn in the impugned judgment and requested for its upholding.

JUDGEMENT:

The raiding party was unaware that the appellant was transporting narcotics, according to the court, hence Sec 42 of Ndps,1985 was not applicable in this case. The prosecution's witnesses provided reliable and persuasive testimony, and the court rejected the argument about how the illegal material should be handled and weighed. The conviction and sentence imposed by the trial court were upheld, and the appeal was denied.

The appeal is denied. The trial court's punishment against the appellant is upheld, and the conviction is upheld. Returning the lower court record to the relevant court will ensure compliance.

CONCLUSION

For the reasons described above, we believe that the prosecution was unable to demonstrate that the search and seizure of Charas from the appellant followed the steps outlined in Sec 50 of Ndps,1985 . The appellant has the right to seek his acquittal because the prosecution's case is doomed due to the mandatory procedure prescribed under sec 50 of Ndps,1985. In this particular case, we have determined that the prosecution has not met its legal burden of proving compliance.

Considering the above discourse, the appeal is successful and granted. The contested decision is overturned. Consequently, the appellant is exonerated of relevant accusations and his conviction is reversed.

REFERENCE

1. https://indiankanoon.org/doc/173720727/

2. https://www.casemine.com/judgement/in/56b494f7607dba348f010050