Without leaving even an iota of doubt to linger in the mind of anyone, the Allahabad High Court has in a most learned, laudable, landmark and latest judgment titled Yusuf vs State of UP in Criminal Appeal No. – 829 of 2005 and cited in Neutral Citation No.- 2023:AHC-LKO:68885 that was reserved on 15.09.2023 and then was finally pronounced on 19.10.2023 has held in no uncertain terms that accused cannot be convicted merely on the testimony of police personnel. It must be noted that the Single Judge Bench comprising of Hon’ble Mr Justice Shamim Ahmed was dealing with the appeal challenging the judgment and order passed by the Additional District and Sessions Judge convicting the appellant in a criminal case registered under Section 8/21 of the NDPS Act. We must also note that in this leading case, the police saw four to five persons standing in suspicious condition and tried to escape from there. But the police caught them on spot.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Shamim Ahmed sets the ball in motion by first and foremost putting forth in para 1 that:
This appeal has been preferred against the judgment and order dated 18.01.2005/24.01.2005 passed by learned Additional District & Sessions Judge (F.T.C. - III), Court No.12, Sultanpur, convicting the appellant in Criminal Case No.8/2004, under Section 8/21 of N.D.P.S. Act, Police Station Jagdishpur, District Sultanpur and sentencing him for five years rigorous imprisonment alongwith fine of Rs.6,000/- under Section 8/21 of N.D.P.S. Act.”

To put things in perspective, the Bench then envisages in para 2 that:
Briefly stated, the facts of the prosecution case are that on 28.01.2004, Station House Officer, S.P. Gupta, posted at Police Station Jagdishpur, District Sultanpur, was on patrolling duty in search of wanted criminal along with Sub Inspector Bhola Prasad, Head Constable Shiv Dutt Singh, Constable Ram Murti Prajapati, Constable Shyam Shanker Saroj, Constable Santosh Kumar Singh and Constable Driver Rama Shanker Tiwari and as the patrolling party reached Gulab Ganj Crossing, they saw four to five persons standing at west side of Jagdishpur Bus Depot in suspicious condition and tried to escape from there. The police party, on sensing some doubt in view of their conduct, apprehended and caught them on spot.

Upon interrogation, they confessed that they were carrying morphine; they were told that they had options either to get them searched before Gazetted Police Officer or before patrolling police officer.

Thereupon, they asked the police party to conduct search upon them. Thereafter, accused were searched out by patrolling police party with their consent. One accused told his name as Naeem S/o Jameel and 100 gm morphine was recovered from his trouser’s right pocket whereas Rs.1,100/- were recovered from left pocket. Second accused told his name as Mustafa Chunnu and 100 gm morphine was recovered from his trouser’s right pocket whereas Rs.900/- were recovered from left pocket.

Third accused told his name as Yusuf S/o Munne and 100 gm morphine was recovered from his trouser’s right pocket whereas Rs.700/- were recovered from left pocket. Fourth accused told his name as Shamshad S/o Shafiq and 100 gm morphine was recovered from his trouser’s right pocket whereas Rs.600/- were recovered from left pocket. Thereafter, recovery memo was prepared; recovered contraband morphine was sealed; all the accused were arrested and a criminal case on the basis of recovery memo was lodged under Sections 8/21 of N.D.P.S. Act at Police Station Jagdishpur, District Sultanpur.”

While citing the relevant case law, the Bench enunciates in para 18 that, “Hon'ble Supreme Court in State of Rajasthan Vs. Parmanand and another, (2014) 2 SCC (Cri) 563, again in paragraph-17, has opined as under:-

“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. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval.””

Be it noted, the Bench notes in para 19 that:
Admittedly, the prosecution has not produced other eyewitnesses of the alleged recovery i.e. Sub Inspector Bhola Prasad, Head Constable Shiv Dutt Singh, Constable Shyam Shanker Saroj, Constable Santosh Kumar Singh and Constable Driver Rama Shanker Tiwari. No explanation has been offered by the prosecution for their non-production. These witnesses are police personnel. Non-production of these witnesses, where serious allegation has been made against Station House Officer S.P. Gupta (PW-2) by the appellant, is serious lacuna which has made the prosecution case very doubtful.”

It is also worth noting that the Bench notes in para 20 that:
There is another serious lacuna in the prosecution case, as stated by Station House Officer S.P. Gupta (PW-2) that after recovery of the said morphine, he kept it in his possession. It means that he had not deposited the recovered morphine in Malkhana of concerned police station. He (P.W.-2) has not stated anything as to when he handed over the seized contraband goods to concerned official for keeping it in safe custody. He (P.W.-2) has also not stated that being S.H.O. at the time of seizure why he did not deposit the contraband seized article into Malkhana of concerned police station and kept it in his personal custody.”

Adding more to it, the Bench then hastens to add in para 21 stating that:
In addition to above, admittedly the appellant, prior to his search, was not produced before any Gazetted Officer or Magistrate, whereas according to prosecution before his search the police personnel were informed by the appellant that he was carrying the morphine. Prosecution has also not produced any written consent of the appellant for his search. From perusal of testimony of P.W.-2, it does not transpire that any efforts were made by him to produce the appellant before any Gazetted Officer or Magistrate, as required by Section 50 of N.D.P.S. Act, in view of law laid down by Apex Court in Vijaysinh Chandubha Jadeja (Supra).”

What’s more, it cannot be glossed over that the Bench then quite significantly notes in para 22 that:
Further, it is also pertinent to note at this juncture that not only the manner in which the appellant was searched, is doubtful, the prosecution has also not prosecuted the case seriously, knowing that severe punishment has been provided in N.D.P.S. Act. It produced only two witnesses of fact i.e Constable Ram Murti Prajapati as P.W.-1, Station House Officer S.P. Gupta as P.W.-2 and withheld other witness without any justification.”

As a corollary, the Bench then finds just no difficulty in holding most decisively in para 23 that:
In the light of above discussion, it is clear that the prosecution has failed to prove the mandatory compliance of Section 50 N.D.P.S. Act. In absence of compliance of mandatory provision of Section 50 N.D.P.S Act, the prosecution case, based on testimony of police personnel i.e. Constable Ram Murti Prajapati (P.W.-1), Station House Officer S.P. Gupta (P.W.-2) whose statements are not wholly reliable, cannot be held as proved beyond reasonable doubt in view of the other illegalities and material irregularity committed by P.W.-1 and P.W.-2 as discussed above.”

Most significantly, the Bench then mandates in para 24 holding that:
Thus this Court is of the view that prosecution has miserably failed to prove its case beyond reasonable doubt against the appellant. The trial Court has not properly discussed the evidence produced by the prosecution and has passed the impugned judgment and order against the settled principle of law including provisions of N.D.P.S. Act. This Court, therefore, unable to uphold the conviction and sentence of the appellant. The appellant is entitled to be acquitted. The impugned judgment and order is liable to be set aside and accordingly, appeal is liable to be allowed.”

Resultantly, the Bench then holds in para 25 that:
In view of the above, impugned judgment and order dated 18.01.2005/24.01.2005 passed by learned Additional District & Sessions Judge (F.T.C. - III), Court No.12, Sultanpur, convicting the appellant in Criminal Case No.8/2004, under Section 8/21 of N.D.P.S. Act, Police Station Jagdishpur, District Sultanpur, is set aside and reversed and accused/appellant, namely, Yusuf is acquitted of the charges levelled against him. Consequently, the appeal is allowed. His personal bond and surety bonds are canceled and sureties are discharged.”

In addition, the Bench then directs in para 26 that:
Let a copy of this judgment alongwith the lower court record be sent immediately to the Trial Court concerned for necessary compliance.”

Finally, the Bench concludes by clarifying in para 27 that:
No order as to the costs.”

In a nutshell, the Allahabad High Court has made it manifestly clear that accused cannot be convicted merely on the testimony of police personnel only. It was also made clear by the Court that the search must be also made as per rules laid down in the NDPS Act. The Court clarified that not only the manner in which the appellant was searched is doubtful but the prosecution has also not prosecuted the case seriously knowing that severe punishment has been provided in NDPS Act. No wonder, the accused was thus acquitted and very rightly so!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh