JUDGMENT [ENTITY], J.
1. Feeling aggrieved by the judgment, dt. 29-8-1998 passed by the learned Sessions Judge, Kullu and Lahaul Spiti Division at Kullu, whereby the respondent-accused (hereafter referred to as 'the accused)' has been acquitted of a charge under [SECTION] of the [ACT] (hereinafter referred to as 'the Act'), the State has preferred the present appeal.
2. Case of the prosecution, in brief, is that on 18-11-1996 at about 2.40 p.m., when ASI [ENTITY] (PW 16) along with PW 9 [ENTITY], HHG, HC was on patrol duty in Manali bazar, he received a secret information that [ENTITY], the accused, was dealing in '[ENTITY]' and even at that time he was leaving bus stand Manali along with his luggage and '[ENTITY]' could be recovered from his possession. On receipt of this information, [ENTITY], ASI constituted a raiding party consisting of [ENTITY] (PW 15) and [ENTITY] (PW 14). Then he drew up a 'Ruqua' Ext. PD and sent the same to Police Station, Manali for registration of a case under [SECTION] of the Act on the basis of which FIR. Ext. PE was recorded in the said Police Station. ASI [ENTITY] thereafter proceeded to the bus stand where he found accused carrying a gunny bag on his back and was boarding bus HP-33-1853 bound for Delhi. ASI [ENTITY] inquired the name and address of the accused and informed him that he was to be searched because of the suspicion that he was carrying '[ENTITY]' and that he could opt for his search by some Gazetted Officer or the Magistrate or by him. The accused consented for search by the said ASI who thereafter conducted the search in the presence of the members of the raiding party. On checking of the gunny bag which the accused was carrying, some utensils and one helmet were found therein. Inside the helmet, two plastic bags, one containing 1 Kg. of '[ENTITY]' and another containing 2 Kgs. and 200 grams of '[ENTITY]' were recovered. '[ENTITY]' samples were taken from both the bags. Thereafter the samples and the remaining '[ENTITY]' were separately sealed and were taken in possession vide memo. Ext. PM. The other legal formalities were completed thereafter and the samples of '[ENTITY]' were sent to Central Forensic Science Laboratory, Chandigarh for analysis. As per the report Ext. PK received from the said Laboratory, the samples were found to be '[ENTITY]' (can-nabis). On being satisfied of the commission of offence by the accused, the officer incharge of Police Station, Manali submitted a charge-sheet against the accused who was tried by the learned Sessions Judge, Kullu on a charge under [SECTION] of the Act.
3. To prove the charge against the accused, prosecution examined as many as 16 witnesses.
4. In his statement under [SECTION] of the [ACT], the accused denied the prosecution case as a whole and claimed to be innocent. The accused, however, did not lead any defence.
4A. By the impugned judgment, the learned Sessions Judge acquitted the accused of the charge against him. Hence the present appeal.
5. We have heard the learned Assistant Advocate General for the State and the learned counsel for the accused and have also gone through the records.
6. The learned Assistant Advocate General has contended that the learned Sessions Judge himself has held that the recovered article is '[ENTITY]' (Cannabis) and that PW 16 ASI [ENTITY] was, admittedly, competent to conduct the search under [SECTION] of the Act. Therefore, in view of the proved/admitted position as aforesaid and the fact that the recovered '[ENTITY]' is more than 3 Kgs. and, thus, incapable of being planted by the police, the prosecution version that the search was conducted after compliance of the provisions of [SECTION] of the Act and the '[ENTITY]' was recovered from the possession of the accused as stated by PW 16 [ENTITY] and PW 15 [ENTITY], could not be disbelieved. On the contrary, the charge against the accused is proved beyond reasonable doubt and he deserves to be convicted and sentenced.
7. On the other hand, the learned counsel for the accused has contended that the learned Sessions Judge has rightly doubted the proper compliance of the provisions of [SECTION] of the Act and the alleged recovery of '[ENTITY]' from the possession of the accused, in view of the discrepant and contradictory statements of the material prosecution witnesses, therefore, the impugned acquittal is fully justified and calls for no interference.
8. There is no dispute that being an Assistant Sub-Inspector of Police, PW 16 [ENTITY] was competent to conduct the search, seizure and investigation in this case.
9. The controversy about the non-compliance of the provisions of [SECTION] of the Act, in fact, has no bearing on the fate of this case. The case of the prosecution is that the '[ENTITY]' was found in two plastic bags kept in a helmet which itself was kept in a gunny bag. Thus, the alleged recovery was not effected on search of the person of the accused but on search of the luggage allegedly belonging to the accused. Therefore, the provisions of [SECTION] of the Act are not attracted in this case.
10. The relevant part of [SECTION] of the Act reads as follows :
(1) When any officer duly authorised under [SECTION] is about to search any person under the provisions of [SECTION], [SECTION] or [SECTION], he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in [SECTION] or to the nearest Magistrate.
11. It is clear from the bare reading of the aforesaid provisions that there will apply only in a case of search of a "person" and not to the search of luggage of such person because luggage does not form part of a "person". Thus, in this case wherein the luggage of the accused was the subject-matter of search, the provisions of [SECTION] of the Act were not applicable, therefore, it was not legally required to make an offer to the accused for search in the presence of a Gazetted Officer or a Magistrate.
12. In case [PRECEDENT], the Hon'ble Supreme Court, while dealing with a similar question, has held as follows (Para 5 of Cri LJ):
4 As rightly pointed out by the High Court search of baggage of a person is not the same thing as search of the person himself. In State of Punjab v. [ENTITY], (1999) 4 JT(SC) 595: (1999 Cri LJ 3672) this Court has held that the requirement of informing the accused about his right under [SECTION] comes into existence only when person of the accused is to be searched. The decision of this Court in [PRECEDENT], wherein it was held that though poppy straw was recovered from the bags of the accused, yet he was required to be informed about his right to be searched in presence of a Gazetted Officer or a Magistrate, now stands overruled by the decision in [ENTITY]'s case (supra). If a person is carrying a bag or some other article with him and narcotic drug or the psychotropic substance is found from it, it cannot be said that it was found from his 'person'. In this case heroin was found from a bag belonging to the appellant and not from his person and therefore it was not necessary to make an offer for search in presence of a Gazetted Officer or a Magistrate.
13. In view of the above settled position in law, in this case it was not legally required to make an offer to the accused to opt for a search of his luggage in the presence of a Gazetted Officer or a Magistrate.
14. The learned Sessions Judge has held that the prosecution has proved that the recovered article is '[ENTITY]' (Cannabis). This conclusion of the learned trial Judge is based on the report of Central Forensic Science Laboratory, Chandigarh Ext. PK. wherein it has been opined that the content of the samples sent to said Laboratory was found to be of '[ENTITY]' (Cannabis). There is no dispute that the report Ext. PK has been read in evidence by the learned Sessions Judge without formal proof. However, only such reports of the experts can be read in evidence without formal proof which fall within the ambit and scope of [SECTION] of the [ACT].
15. [SECTION] of the said Code reads as follows :
293. Reports of certain Government scientific experts. (1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report.
(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.
(4) This section applies to the following Government scientific experts, namely :
(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
(b) the Chief Inspector of Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director (Deputy Director or Assistant Director) of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government.
16. It is, thus, manifest from the bare reading of the above quoted provisions that the reports under the hand of such Government Scientific Experts as mentioned hereinabove only can be read in evidence without formal proof. The report Ext. PK relied upon by the learned Sessions Judge to hold that the recovered article is '[ENTITY]' is signed by Junior Scientific Officer (Tox.), Central Forensic Science Laboratory, Chandigarh who is not one of such Government Scientific Officers as mentioned in [SECTION] of the Code. Therefore, the report Ext. PK could not be read in evidence unless the signatory of the report was examined to prove it. The conclusion of the learned Sessions Judge that the recovered article is '[ENTITY]' based on the report Ext. PK, which has not been proved in accordance with law, is thus not sustainable.
17. The view we have taken hereinabove about the scope of [SECTION] of the [ACT] is fully supported by the ratio in case [PRECEDENT], wherein a Division Bench of this Court has held as under :
42. [SECTION] of [ACT], permits the use of reports of certain Government Scientific Experts, as evidence in any inquiry, trial or other proceedings, under the Code, without formal proof. The Government Scientific Experts to whom the provisions of [SECTION] are applicable, are detailed in sub-section (4), thereof. A 'Junior Scientific Officer (Ballistics)' is not one of such Scientific Experts. Therefore, the report, Ex. PX, cannot be read in evidence in the present case without the expert named therein having been examined in the present case.
18. So far as the conclusion of the learned Sessions Judge that the prosecution has failed to prove recovery of the '[ENTITY]' from the possession of the accused is concerned, we find that it is based on correct and proper appraisal of the evidence on record. In view of our findings that report Ext. PK could not be read in evidence, there is no evidence to prove that whatever has been recovered by the police is '[ENTITY]'. Moreover, there is no cogent and reliable evidence to prove that the recovered article was in possession of the accused. Ext. PM is the recovery memo of the alleged '[ENTITY]'. This memo is, admittedly, prepared by PW 16 [ENTITY], Investigating Officer and the marginal witnesses thereof are PW 14 [ENTITY] and PW 15 [ENTITY]. There are material contradictions in the statements of these witnesses. According to PW 14 [ENTITY], the gunny bag (from which the '[ENTITY]' was allegedly recovered) was brought down by the police from the roof of the bus where the accused was keeping his luggage. Contrary to this, version of PW 15 [ENTITY] is that the gunny bag was kept in the centre of the roof of the bus by the accused and on the asking of the police accused brought down the gunny bag. These contradictory versions are further contradicted by the Investigating Officer (PW 16) who has stated that the accused was found carrying the gunny bag when he was going towards the bus and was at a distance of 15-20 feet from the bus. It also emerges from his statement that nothing incriminating was found in the gunny bags of the accused which were brought down from the roof of the bus. Thus, this witness states about search of six bags in all. These contradictions raise grave doubts about the truthfulness of the prosecution version, moreso when the Investigating Officer (PW 16) himself is admittedly, under suspension for his involvement in the commission of an offence punishable under the [ACT]. Therefore, we do not find any reason to interfere with the conclusion of the learned Sessions Judge on this count.
19. In view of the above discussion, the only conclusion which can be arrived at is that the charge against the accused is not proved, therefore, the impugned acquittal does not call for any interference by us.
20. As a result, this appeal fails and is accordingly dismissed.
21. The bail bonds furnished by the accused are discharged.