IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 436 of 1999 Date of Decision : July 27, 2010 State of H.P. …Appellant. Versus: Parkash Chand …Respondent-accused. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Rajesh Mandhotra, Dy. A.G. For the respondent : Mr. Dharamvir Sharma, Advocate Deepak Gupta, J. (Oral). This appeal by the State is directed against the judgment dated 29.7.1999 delivered by the learned Special Judge, Solan, in Sessions Case No. 12-5/7 of 1999, whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ‘Act’). 2. The prosecution case in brief is that on 9.3.1999 PW- 4 Inspector Roshan Lal received secret information that one person is standing at the Tank Road and the said person is 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 having charas. He reduced the information in writing vide memo Ext.PW-4/A and went to the Police Station Sadar, Solan and lodged a daily diary report in this behalf. Thereafter, PW-4 Roshan Lal, HC Megh Ram Thakur (PW-5), Constable Jeet Ram (PW-7) and Constable Vinod Kumar went towards the Tank Road. Two persons PW-11 Charanjit and PW-3 Jagdish were associated as independent witnesses. The accused on seeing the police party tried to run away. He was over powered. He was asked to disclose his name and told that he has to be searched. According to the prosecution, option of search was given to the accused and he consented to be searched by the police. On search of the accused a polythene bag was recovered which contained charas in the form of ‘Batties’. On weightment, the charas was found to be 400 gms.. Two samples were drawn out of this charas and the two samples and the bulk charas were sealed in 3 separate parcels vide memo on the spot. Thereafter Rukka Ext.PW-4/E was prepared and sent to the Police Station. In the Police Station, the case property was re-sealed by the SHO with his own seal vide seal ‘T’. Thereafter, one of the samples was sent for chemical examination and vide report Ext.PW-12/D, the Chemical Examiner opined that the sample is of charas. On this basis the challan was filed against the accused. The learned trial Court acquitted the accused, hence this appeal by the State. 3 3. There are two versions as to when and from where the charas was recovered. According to the police officials the charas was in the polythene bag being carried by the accused in his hands. If that be true then Section 50 of the Act would not be applicable. However, PW-11 Charanjit, the independent witness who has supported the prosecution states that on search of the accused from his pant one polythene bag was recovered which contained charas. This means that the charas was recovered from the pant of the accused and in such an eventuality the provision of Section 50 would be applicable. Out of the two independent witnesses PW-3 Jagdish did not support the prosecution at all and was declared hostile. His evidence is being discarded. PW-11 Charanjit no doubt supported the prosecution but his statement does not tally with that of the police witnesses. According to him, the charas was recovered from the pant of the accused. He does not say a word as to whether any consent of the accused was obtained under Section 50 of the Act. He no doubt has identified his signatures on the consent memo Ext.PW-3/A, but while testifying in Court he is totally silent that as to when this consent was obtained from the accused. 4. Coming to the statement of the Investigating Officer PW-4, his version is that he informed the accused that he suspected him of carrying some illegal substance and whether he wants to be searched by the Magistrate or by him. Even if such 4 option was given to him the same is not in consonance with the provisions of the Act. The accused was not told that he is to be searched before a Gazetted Officer or before a Magistrate. PW-5 Megh Ram Thakur who was present on the spot has also not talked about the consent memo. He only states that he took the samples to Kandaghat. PW-7 Jeet Ram has given a different version. According to him, PW-4 asked the accused whether he wanted to be searched by the police officials or some Gazetted Officer. In his statement in Court he does not state that any option was given to the accused to be searched before a Magistrate. 5. It is true that in memo Ext.PW-3/A, it is mentioned that the accused had a right to be searched before a Magistrate or a Gazetted Officer or the police officials, but it appears that the memo was not prepared at the spot itself. The reason for coming to this conclusion is that the independent witness Charanjit is totally silent about such option being given. He does not say a word as to what option was given to the accused and has only identified his signatures on the memo. The Inspector gives one version that he gave an option to the accused as to whether he wanted to be searched before the police or Magistrate and anything more. PW-7 Jeet Ram gives another version. His version is that the option was given to the accused whether he wanted to be searched before the police or the Gazetted Officer. He does not talk of a Magistrate. PW-5 Megh 5 Ram Thakur who was on the spot is totally silent on this aspect. There are three different versions as to the nature of the option given. In such an eventuality, it cannot be said that the option Ext. PW-3/A was given prior to the search. Therefore, there has been a violation of Section 50 of the Act and on this short ground alone, the accused has to be acquitted. 6. In view of the above, we find no merit in the appeal, which is accordingly dismissed. The bail bonds are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. July 27, 2010. (rana)