- (1.) THIS leave to appeal arises out of judgment dated 25.8.2009 passed by Additional Sessions Judge, Court Nos. 5, Pratapgarh in Criminal Case Nos. 23 of 2008 and S.T. Nos. 195 of 2008 recording acquittal of the accused respondents of the offences under Section // of N.D.P.S. Act and Section I.P.C.
(2.) WE have heard learned State Counsel and perused the materials on record. As per the prosecution case it appears that on 19.3.2008 when a police party headed by S.O., B.K. Singh, was engaged in checking at platform Nos. 1, the accused -respondent was arrested on suspicion as he tried to run away from the scene of occurrence having noticed presence of police party. On the reason being asked, the respondent disclosed incriminating materials in his possession and further informed the police that he was carrying two packets of cream biscuits containing narcotic materials and powder of some intoxicating material. It appears that he was made aware his right to be searched before a Magistrate or Gazetted Officer but he refused and reposed confidence on police party and on his search the alleged contraband item said to be 50 gms. Diazapam was recovered. As the same was a non -commercial quantity of contraband, the accused -respondent was challaned and tried upon the aforesaid charges. However, the trial ended in acquittal and that is why the State is before us for leave to appeal.
(3.) LEARNED State Counsel submitted that since contraband item was found in possession of the accused -respondent, the presumption is that he had possessed it illegally and, therefore, the impugned order is perverse. He further submitted that provisions which have been held mandatory for application in the case are, in fact, directly in nature.;