Uttarakhand High Court
Rajendra Singh Khampa vs State Of Uttarakhand on 8 July, 2025
Author: Pankaj Purohit
Bench: Pankaj Purohit
Judgment reserved on:-10.06.2025
Judgment delivered on:-08.07.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.253 of 2006
Rajendra Singh Khampa ..........Appellant
Versus
State of Uttarakhand .........Respondent
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Presence:-
Mr. S.R.S. Gill, Advocate for the appellant.
Mr. S.C. Dumka, A.G.A. with Ms. S.B. Dobhal, B.H. for the State.
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Hon'ble Pankaj Purohit, J.
This criminal appeal is preferred by the
appellant under Section 374(2) of Cr.P.C. and is directed
against the judgment and order dated 16.11.2006 passed
by learned Sessions Judge, Pithoragarh in Special
Sessions Trial No.11 of 2004, State Vs. Rajendra Singh
Khampa, whereby the accused appellant has been
convicted under Section 20 of N.D.P.S. Act, 1985 and
was sentenced to undergo three years two months
rigorous imprisonment with a fine of ₹10,000/- with
default stipulation of additional one month simple
imprisonment.
2. In brief, the story of prosecution is that S.S.I.
U.C. Pant lodged an FIR on 08.01.2004 at around 00:45
hours alleging therein that on 07.01.2004 around 23:30
hours when he was patrolling the city along with
Constable Om Shankar and Shyam Kumar a person on
seeing them, suspiciously tried to run. After getting
caught, on inquiry, he told that he was in possession of
charas, therefore he tried to run away. Thereafter, when
the S.S.I. told him that he had a right to be searched in
presence of a Magistrate or a Gazetted Officer, he replied
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that he did not wish to be searched in presence of
aforesaid Officers and the Police team was free to search
him. Thereafter, charas wrapped in a polythene bag was
recovered from right pocket of his jacket worn. As the
recovery happened at night no shops were open and no
other witness other than the Police officials were present
at the spot. Thereafter, Constable Om Shankar was sent
to police station to inform higher officials and to bring a
weighing machine. The charas was weighed 225 grams
and two samples of 50-50 grams and one sample
containing rest of the charas was prepared and a
recovery memo was thereafter made.
3. On the basis of above after preparing site plan,
recording statement of witnesses and sending the charas
to F.S.L. Agra and receiving the F.S.L. Report a charge
sheet was filed by the Investigating Officer in the court
below under Section 18/20 of N.D.P.S., 1985.
4. Thereafter learned Special Sessions Judge,
Pithoragarh framed charges under Section 20 of N.D.P.S.,
1985. The charges were read over and explained to the
accused, who pleaded not guilty and claimed to be tried.
5. To prove its case, the prosecution has
examined PW1 (S.S.I. U.C. Pant) (informant), PW2
(Constable Om Shakar), PW3 (Constable Vinod Kumar),
PW4 (S.I. Ranveer Singh) (Investigating Officer), PW5
(Constable Subhash Tyagi) to substantiate and prove the
charge against the appellant.
6. After prosecution evidence, the statement of
appellant was recorded under Section 313 of Cr.P.C. in
which he stated that he was innocent. He further stated
that all witnesses were Police men and therefore were not
independent witnesses and could not be relied upon.
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7. During trial as PW1 and PW2 were part of the
patrolling team reiterated the facts of the prosecution
story and supported it in its entirety.
8. PW3 on oath stated that on 07.01.2004 at
around 23:50 P.M. Constabel Om Shankar reached the
police station and informed that charas has been
recovered from one Mr. Rajendra Singh Khampa during
patrolling and he was here to inform higher officials and
to take back weighing scale as all the shops were closed.
He gave weighing scale and weights (baat) to him and
informed higher officials about the incident.
9. PW4 was the Investigating Officer and he also
supported the prosecution story and proved various
documents and on oath stated that he has investigated
the matter and has submitted the charge sheet.
10. PW5 on oath stated that he was posted as a
Constable in the concerned police station and by an
order dated 17.01.2004 was asked to carry the recovered
charas to F.S.L. Agra. He further stated that on
examination F.S.L. Agara opined the substance as
charas.
11. The main thrust of argument advanced by
learned counsel for the appellant is that it is a case of
total non-compliance of Section 50 of N.D.P.S. Act, 1985;
therefore the order cannot sustain in the eyes of law. He
relied on multiple judgments of Apex Court on this point.
12. Per contra, State counsel submits that it is a
chance recovery so it was not possible for compliance of
Section 50 of N.D.P.S. Act 1985.
13. Having heard the learned counsel for the
parties, perusing the material available on record and
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going through Section 50 of N.D.P.S. Act, 1985 and case
laws supplied by the learned counsel for the appellant,
this Court is of the opinion that it was an admitted case
of prosecution that search of the accused person was not
carried in the presence of Magistrate or Gazetted Officer
thereby defying the mandate of Section 50 of N.D.P.S.
Act, 1985. I do not find favour with the argument
advocated by State counsel as provision of N.D.P.S. Act,
1985 are draconian in nature and there should be strict
compliance of provision of Section 50 of N.D.P.S. Act,
1985.
14. My view is further fortified by judgment of the
Apex Court in the case of Arif Khan @ Aga Khan Vs. State
of Uttarakhand reported in (2018) 18 SCC 380. Relevant
paragraphs of the said judgment are quoted hereunder:-
“18. What is the true scope and object of Section 50 of
the NDPS Act, what are the duties, obligation and the powers
conferred on the authorities under Section 50 and whether
the compliance of requirements of Section 50 are mandatory
or directory, remain no more res integra and are now settled
by the two decisions of the Constitution Bench of this Court
in State of Punjab v. Baldev Singh and Vijaysinh Chandubha
Jadeja.
19. Indeed, the later Constitution Bench decision
rendered in Vijaysinh Chandubha Jadeja has settled the
aforementioned questions after taking into considerations all
previous case law on the subject.
15. Keeping in view the aforementioned principle of
law laid down by Apex Court, this Court has to examine
the question arising in this case as to whether the
prosecution followed the mandatory procedure prescribed
under Section 50 of the N.D.P.S. Act, 1985 while making
search and recovery of the contraband “charas” from the
appellant and, if so, whether it was done in the presence
of a Magistrate or a gazette officer so as to make the
search and recovery of contraband “charas” from the
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appellant in conformity with the requirements of Section
50.
16. In my considered view, the evidence adduced
by the prosecution neither suggested and nor proved that
the search and the recovery was made from the appellant
in the presence of either a Magistrate or a Gazette Officer.
17. The upshot of the aforesaid discussions is that
the appeal deserves to be allowed. Accordingly, present
appeal is allowed and the impugned judgment and order
dated 16.11.2016 passed by learned Sessions Judge,
Pithoragarh in Special Sessions Trial No.11 of 2004,
State Vs. Rajendra Singh Khampa is hereby set-aside.
The appellant is on bail. He need not to surrender. His
sureties be discharged.
18. Let the T.C.R. be immediately sent back to the
trial court for consignment.
(Pankaj Purohit, J.)
08.07.2025
SK
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