IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.689 of 1996 Decided on : November 25, 2009 State of H.P. …Appellant. Versus Phool Singh …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent : Mr. Mehar Chand Thakur, Advocate. Surjit Singh, J (Oral) State has appealed against the judgment, dated 30th April, 1996, of learned Additional Sessions Judge, Kullu, whereby respondent Phool Singh, who was tried for an offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, for allegedly possessing 1.200 kgs of Charas, has been acquitted. 2. Case of the prosecution, which led to the trial of the respondent, may be noticed. On 17th November, 1995, around 8.10 a.m., when PW-10 SI Jagdish Chand, SHO Police Station, Banjar, was present at Bus Stand, Banjar, he was informed by some reliable person that a man, wearing a shirt and a pyjama, was travelling by a Bus, which was Whether reporters of the local papers may be allowed to see the judgment? …2… coming from Bathahar side and that that man had Charas in his possession. PW-10 SI Jagdish Chand reduced that information into writing (Ex. PW-2/C) and sent the same to the Police Station, with a direction that concerned authorities be informed. Thereafter, he proceeded towards village Bathahar, in the company of Constable Raj Kumar (PW-2). A private Bus was spotted coming from Bathahar side, at a place called Khunan. PW-10 SI Jagdish Chand and PW-2 Constable Raj Kumar boarded that Bus. Respondent was spotted occupying a seat near Conductor’s seat, in the Bus. PW-10 SI Jagdish Chand sat beside him. When the Bus reached Banjar, the respondent was made to alight from the Bus. Two passengers, namely Paras Ram (PW-1) and Lotam Ram, who were travelling by the same Bus and deboarded it at Banjar, were associated as independent witnesses. Respondent was informed vide writing Ex. PA that it was suspected that he was carrying Charas and so it was intended to search his person and that he had the option to be searched on the spot by him (the SHO) or in the presence of a Gazetted Officer or a Magistrate. Respondent opted for search of his person on the spot. His person was searched and it was found that he had tied a bundle to the string of the pyjama, which he was wearing and on opening that bundle a polythene bag was recovered, which contained Charas weighing 1.200 kgs. Two samples, each weighing 25 grams, were separated. …3… The samples and the bulk charas were made into three separate parcels and the parcels were sealed with a seal that produced the impression of letter “X” of English alphabet. A report of the search and seizure was drawn and sent to the Police Station for formal registration of the case. Said report is Ex. PW-2/A. Case was formally registered, on the basis of this report, vide FIR Ex. PW-2/B. All the three parcels were deposited with the Muharrar Head Constable, Police Station Banjar. One sample parcel was sent to the Chemical Examiner, who vide report Ex. PW- 10/D reported that the sample contained 33.17 per cent resin of cannabis plant. On receipt of the report from Chemical Examiner, case was filed in the Court. 3. Respondent was charged with an offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, by learned Additional Sessions Judge to whom the case was assigned for trial. He pleaded not guilty to the charge and was, therefore, tried for the said offence. 4. During the course of trial, one of the two independent witnesses, namely Paras Ram (PW-1) was examined. He turned hostile. He denied that respondent’s search was conducted in his presence, at the Bus Stand and Charas was recovered. Instead, he stated that he was called to the Police Station and was made to sign certain papers, which had already been written. …4… 5. Two other witnesses examined by the prosecution to prove the search and seizure are PW-2 Constable Raj Kumar and PW-10 SI Jagdish Chand, SHO Police Station, Banjar. Both of them testified that the respondent was searched, after he was made to alight from the Bus, in the presence of PW-1 Paras Ram and one Lotam Ram and that on search Charas was recovered. However, while according to PW-2 Constable Raj Kumar, the respondent had tied the bundle containing Charas to his waist, with string of pyjama, at the site of the navel, PW-10 SI Jagdish Chand stated that the Charas was tied to the string of the pyjama. He did not say that it was tied to the waist of the respondent. His statement gives the impression that probably the bundle, containing Charas, was suspended inside the pyjama, though he did not specifically say so. This contradiction, in our considered view, renders the prosecution version doubtful, especially when the independent witness examined by the prosecution did not support its story. 6. Also, we find that mandatory provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act had not been complied with, in letter and spirit, inasmuch as the respondent was not apprised that he had a right to be searched in the presence of a Gazetted Officer of one of the notified departments or a Magistrate. He was simply asked whether he wanted to be searched on …5… the spot by PW-10 SI Jagdish Chand or in the presence of some Gazetted Officer or a Magistrate. In view of the abovestated position, we see no merit in the present appeal. The same is, therefore, dismissed. ( Surjit Singh ), J November 25, 2009(sd) ( Surinder Singh ), J