1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 227 of 1997 Decided on August 17, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Surinder Kumar & Another ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr.Rajinder Dogra, Additional Advocate General. For respondent No.2: Ms. Madhu Sharma, vice counsel. Justice R.B. Misra,J. (Oral) Heard Mr. Rajinder Dogra, Learned Additional Advocate General and Ms. Madhu Sharma, learned counsel for respondent-accused No.2. Ms. Madhu Sharma, learned counsel appearing on behalf of respondent-accused No.2 has submitted that respondent-accused No.1 has been declared proclaimed offender, however, she has argued that prosecution case against accused No.2 has become doubtful. 2. The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 17.9.1996, passed by Learned Sessions Judge, Mandi, H.P., in Sessions Trial No. 8 of 1996, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act'), acquitting the alleged 2 respondents-accused. 3. The prosecution case is that on 29.11.1995, both the accused were charged under Section 20 of the 'NDPS Act' for carrying 500 grams of 'charas' and on search 500 grams 'charas' was recovered from the pocket of the shirt (Kurta) of accused Surinder Kumar, wherein one plastic envelope containing 'charas' in the shape of sticks was recovered, on weighing, it was found 500 grams and Rukka was sent to the police station through Constable Ami Chand, on which FIR No. 289/1995 was registered. 4. After investigation, respondent-accused were arrested and charged for the offence under Section 20 of the 'NDPS Act'. In order to prove its case, the prosecution examined as many as 14 prosecution witnesses. Whereas, the accused through their statement under Section 313 of Cr.P.C., have denied the prosecution case and shown their innocence. 5. The prosecution case is that in presence of Balibhadar and Lal Singh, search was made and 'charas' was recovered from accused Surinder Kumar. Balibhadar was examined as PW.11, however, he did not support the prosecution case by stating that neither notice was given nor any search of the accused was conducted in his presence. PW.11 also denied the recovery of 'charas' from the possession of the accused, as such, he declared hostile. Other independent witness Lal Singh, was said to be a witness of search and seizure, was given up by the prosecution. 3 6. On analysis of the prosecution witnesses and material on record, learned Sessions Judge has given weightage to the two aspects that two independent witnesses allegedly joined the raiding party, however, one out of two independent witnesses, i.e., PW.11 Balibhadar, has not supported the prosecution case and second independent witness, namely, Lal Singh was given up, as such, the prosecution has failed to prove the recovery of 'charas' from the possession of accused and doubt has been created, as such, benefit positively was given to the accused. 7. Learned Sessions Judge has also considered the mandatory requirement of Section 50 of the 'NDPS Act'. The accused was only said that he has to be searched and whether he wants to be searched by a Magistrate or Gazetted Officer or by police party, but he was not apprised that he has a right to be searched and by not apprising him, so the mandatory requirement of Section 50 of 'NDPS Act' was not complied with. 8. On the basis of prosecution witnesses and material on record, for not fulfilling the requirement of Section 50 of 'NDPS Act' and for the lack of corroboration by independent witnesses, the benefit of doubt was rightly given by the learned Sessions Judge to the accused. In our considered view there is no occasion to take a different view other then what has been taken by learned Sessions Judge. 9. In our considered view, the prosecution has failed to bring home the guilt to the accused and the learned Sessions Judge has carefully analyzed the prosecution witnesses and has 4 rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 10. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge August 13, 2010 (V.K. Sharma) (Purohit) Judge