STATE Vs. DENIS JAUREGUL MENDIZABAL

JUDGEMENT

(1.) This petition has been moved by the State seeking leave to appeal against the impugned judgment passed by the Special Judge, NDPS Act (Central District), Tis Hazari Courts, Delhi in FIR No.115/2013 under sec. 22, 23 read with sec. 28 and 29 of NDPS Act. Learned APP for the State has submitted that the basis of accusation is that the accused-respondent was Spanish National who was staying in some hotel at Paharganj and was indulging in procuring and export of Ketamine, a psychotropic substance to foreign countries through courier. Pursuant to raid based on secret information, the accused was apprehended and 4 kgs of Ketamine recovered from the rucksack being carried by him. Vide the impugned judgment, the Ld. Special Judge has concluded that the prosecution has been able to establish that 4 kgs of Ketamine from the conscious possession of the accused, however the recovery stands vitiated for non compliance of mandatory procedural safeguards laid down in Sec. 50 of the Act. As a consequence thereof, the accused was acquitted of all the charges against him in the said case.

(2.) It is stated by the counsel for the respondent-accused that the said accused is a foreign national and was arrested in 2013 and since then, he remained in incarceration till his acquittal in 2019 and is unable to go back to his home-country due to pendency of this petition. A perusal of impugned order would show that the principal basis of acquittal was lack of compliance of sec. 50 of NDPS Act by the investigating authorities, which is extracted as under for reference:

(3.) The Ld. Special Judge in the impugned judgment extracted the law, including decisions of Hon'ble Supreme Court which hold that sec. 50 of the Act is mandatory and not directory. The following judgments are inter alia referred to in the impugned judgment : State of Punjab v. Balbir Singh ( 1994) 3 SCC 299; State of Himachal Pradesh v. Prithi Chand (1966) 2 SCC 37; State of Punjab v. Baldev Singh ( 1999) 6 SCC 172 (CB); Vijay Sinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609; Arif Khan @ Agha v. State of Uttrakhand Crl.A. 273/2007 decided on 27/4/2018 by the Hon'ble Supreme Court ; Dharmabir v. State Crl. 658/2017 decided on 13/11/2018 by this Court; Gulzar Sheikh @ Sonu and Ors. v. State Crl. 1235/2014 decided on 22/2/2019 by this Court.