IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.172/2000 Decided on: November 11, 2010 State of H.P. …Appellant. VERSUS Ranbir Singh ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge Whether approved for reporting?1 For the Appellant: Mr R.K. Sharma, Sr. Additional Advocate General. For the respondent: Mr.Dharamvir Sharma, Advocate. R.B.Misra, Judge (Oral): The present criminal appeal has come for consideration by virtue of granting leave to appeal under Section 378 (3) of the Code of Criminal Procedure in reference to judgment dated 1.1.2000, passed by learned Special Judge, Kullu, H.P. in Sessions Trial No.12 of 1999, for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’), whereby the alleged accused / respondent was acquitted. 2. Prosecution case is that on 11.11.1998 at about 1.15 PM, SHO received information on telephone that one person sitting in Mamta Sweet Shop, Banjar was possessing ‘Charas’. On the basis of this information, raiding party was constituted and two witnesses Balak Ram Whether the reporters of the local papers maybe allowed to see the judgment? …2… and Dhale Ram were also associated. Accused was apprehended and after bringing him under rain shelter, his consent for personal search was obtained and on personal search one polythene envelope was recovered from the jacket containing ‘Charas’ which was weighed and found 1 Kg 300 grams. Out of the recovered ‘Charas’ two samples of 25 grams were taken and the case property and samples were sealed at the spot. Investigation was made and the respondent/accused was charged for the offence under Section 20 of N.D.P.S Act. 3. In order to prove its case, the prosecution has examined as many as nine witnesses, whereas, the alleged respondent / accused through his statement under Section 313 Cr.P.C. has denied the prosecution case. 4. PW-1 Balak Ram, PW-2 Dhale Ram, PW-3 constable Neel Chand, PW- Dina Nath, PW-5 LHC Shambu Lal, PW-6 HC Bhim Sen, PW-7 Khiali Ram, ASI, PW-8 Mahesh Kumar, ASI and PW-9 Inspector Jagdish Chand were examined as prosecution witnesses. 5. PW-1 Balak Ram has not supported the prosecution case and had denied the taking consent of the accused or recovery of 1 Kg 300 grams of ‘Charas’. Similarly PW-2, an another independent witness also had not supported the prosecution case and has stated that he has admitted his signature only on the memos. This witness, however, has denied his presence at the spot with the police and has not supported the search, seizure and recovery. Two independent witnesses, since associated, have not supported the prosecution case and more so, compliance of mandatory requirement of provisions of Section 50 of ‘N.D.P.S Act’ has not been made as the respondent/accused was not …3… apprized of that he is entitled and has right to be searched before a Magistrate or Gazetted Officer. Obtaining consent of the respondent/ accused is not sufficient compliance of mandatory requirement of provisions of Section 50 of N.D.P.S Act. Non compliance of mandatory requirement of provisions of Section 50 of NDPS Act alone is sufficient to make the prosecution case fatal. Endeavour to support prosecution case on the testimony of other official witnesses is not conclusive for the lack of non corroboration of the prosecution case by the independent witnesses. 6. In the facts and circumstances, for not complying the mandatory requirement of provisions of Section 50 of N.D.P.S Act, prosecution case cannot be said to have been proved beyond reasonable doubt. 7. In view of the aforesaid circumstances, learned Special Judge has rightly come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt and in our considered view also the prosecution has failed to bring home the guilt to the respondent / accused. 8. Resultantly, the appeal fails, being devoid of any merit, as such the same is dismissed. Bail bonds furnished by the accused / respondent are hereby discharged. ( R.B.Misra ), Judge 11th November, 2010 (Kuldip Singh ) (sl) Judge