HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.163 of 2001 Decided on: January 6, 2011. State of H.P. …Appellant. VERSUS Lal Singh @ Omi Chand ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? For the Appellant: Mr.R.K. Sharma, Sr. Additional Advocate General For the respondent: Mr. Y.P.S. Dhaulta, Advocate Surinder Singh, Judge (Oral) Respondent was charge-sheeted for the offence under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘The Act’), allegedly keeping in his possession 700 grams of ‘charas’. In Sessions trial No. 7 of 2000 decided by learned Sessions Judge, Mandi, HP, he acquitted the respondent on the ground of non compliance of section 50 of the Act and also on unfairness and lack of impartiality. 2. We have heard learned counsel for the parties and have carefully gone through the evidence on record. In nut shell, the prosecution case can be summed up thus. On 1.12.1999 …… 2 at about 8.30 AM, PW-10 SHO, PS, Aut was present at bus stand, Aut in connection with the investigation of some other case. In the meanwhile, PW-3 ASI Subhash Chand along with some police officials were going to the area of Sudhrani for conducting some investigation. At about 8.30 a.m, bus bearing registration No. HP-49-0232 came from bus Adda side and the passengers started alighting there from. The police officials aforesaid noticed the respondent and on seeing them, he started running towards bazaar with his bag in his right hand. He was over-powered and the police asked about his identity. Since he was nervous, the police suspected some contraband in his possession, as such gave him option to be searched before the Gazetted officer or before the Magistrate and a memo Ex PJ to that effect was prepared in the presence of (PW-9) Desh Raj and one Babu Ram, independent witness available there. Upon conducting search of the bag Ex P-4, some garments of the respondent were taken out along with a polythene bag, which contains 700 grams of ‘charas’. Police took photographs Exts P-5 to P-7 out of the recovered ‘charas’. Two samples of 20 grams each were separated and sealed with seal producing the impression of English letter ‘K’. Remaining quantity was also …… 3 sealed with the same seal and the case property was taken into possession vide memo Ex PA. 3. Specimen impression of the seal was also preserved, one of which is Ex P-3. Police also prepared the rough sketch of the place of the alleged recovery vide Ex PK. 4. Respondent was arrested and grounds of arrest Ex PF were informed him, but at that time, he indicated his name as Lal Singh. Hence, information was sent to his father Chuni Lal through a special constable. The said official informed that he was known as Omi Chand and not Lal Singh. As the respondent happened to mislead the police, thus, challaned for the offence punishable under section 177 of Indian Penal Code. Ruka Ex PD was dispatched to the Police Station through ASI Subhash Chand, on the basis of which, formal FIR Ex PE was registered. 5. On 2.12.1999 a special report Ex PG was sent to the Superintendent of Police, Mandi. The case property was deposited in the Malkhana with MHC. During personal search, police had also recovered the currency notes of Rs. 300/- and other articles mentioned in the memo Ex PN. One of the sample parcel was sent for analysis to CTL, Kandaghat …… 4 through constable Gauri Dutt. It tested positive for ‘charas’ as per report Ex PP. 6. After recording the statements of the witnesses and on completing the investigation, challan was presented, in the court for the trial of the respondent for the offence aforesaid. He was charge sheeted and put on trial. At the conclusion of the trial, he was acquitted aforesaid. 7. At the very outset, we would like to say that in the facts and circumstances of the case, learned trial court wrongly came to the conclusion that there was no compliance of section 50 of the Act for the simple reason that the recovery of alleged contraband was from the bag, to which the respondent was carrying in his hand. The object, purpose and scope of section 50 of the Act has been dealt in number of decisions of the Apex Court. 8. Recently in Ajmer Singh Vs. State of Haryana (2010) 3 SCC 746, while examining the compliance of aforesaid section, relied upon the State of HP Vs Pawan Kumar (2005) SCC (Cri) 943 held that a bag, briefcase or any such article or container etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot …… 5 even remotely be treated to be part of the body of a human being. Therefore, it is not possible to include these articles within the ambit of word ‘person’ occurring in Section 50 of the Act. Therefore, against the aforesaid background, we conclude that compliance of section 50, was not mandatory in the instant case. 9. Without commenting much on the trial court’s judgment, we find that in the instant case, the link evidence is not complete in order to connect the alleged recovery with the report of analysis. 10. PW-10 Vidyadhar, SHO, Police Station, Aut is stated to have deposited the case property in the Police Station, but he did not state to whom he had handed over the case property, but, however, (PW-6) MHC Naresh Kumar stated that on 1.12.1999, SHO Vidyadhar had handed over him one big parcel and two small parcels bearing seal of letter ‘K’, besides specimen impression of seal used, taken on a piece of cloth and also a bag containing some garments which were kept in the Malkhana by him. On 6.12.99, one sealed parcel of sample alongwith the specimen of seal was stated to have been handed over to constable Gauri Dutt for being delivered in the office of CTL, Kandaghat, but …… 6 pertinently (PW-7), Gauri Dutt did not say about handing over these sealed parcels along with sample parcel. Although, he stated that sample parcel was handed over along with road certificate, with the direction to deposit it in the laboratory, but we did not find on record from the statements of any witnesses that what was the number of road certificate. Neither it has been produced before the learned trial court nor its copy was exhibited during the trial which would have facilitated us to find out as to what were the other documents sent with the sample parcel to the CTL, Kandaghat along with the sample more particularly, the sample of seal. We realize that the sample of seal would have not been so material in case the facsimile of the seal would have been on the NCB form, but unfortunately this form bears the date 6th December, 1999, whereas alleged recovery was effected on 1.12.1999. It appears that this form which was required to be otherwise filled in on the spot by the Investigating Officer on 1.12.1999, was prepared by the said Sub Inspector on 6.12.1999 when one of the sample was drawn from Malkhana for its dispatch to the laboratory. Even it does not refer that the sample of seal was attached with this form when it was sent through constable Gauri Dutt for its deposit in the …… 7 laboratory. The lithographic impression on the analysis report does not show as to what was the sample of seal with which the seal of sample parcel was got tallied. Therefore, it appears to have been received in the laboratory in a routine manner. 11. Thus, in our considered opinion, the report of analysis Ex PP could not be connected with the alleged recovery and we find that the link is missing. 12. It is obligatory on the part of the prosecution to prove that the sample which was taken from the recovered stuff was the same which was received in the laboratory. Therefore, in view of the above findings, we are unable to link the report of analysis Ex PP with the recovered stuff, in absence of which the respondent cannot be convicted for the offence aforesaid. 13. Besides above, independent witnesses have also not supported the case of the prosecution to the expectation of the prosecution. Therefore, we observe that the ground of acquittal recorded by the learned trial court may not be correct, but, however, we do not find that the link evidence in the instant case is not complete. As such, …… 8 acquittal of the respondent is upheld. Hence, the appeal is dismissed being without merit. 14. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. Send down the records. (R.B.Misra), J. January 6, 2010 (Surinder Singh),J. (sl) …… 9