IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.86 of 1998 Decided on : March 17, 2010 State of H.P. …Appellant. Versus Virender @ Gora …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent : Mr. N.K. Thakur, Advocate. Surjit Singh, J (Oral) State has appealed against the judgment, dated 5th September, 1997, of the trial Court, whereby respondent Virender alias Gora, who was charged with and tried for offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, has been acquitted. 2. According to the prosecution on 29th September, 1996, information was received by PW-11 ASI Mangal Singh of Police Station, Tissa that a man with Charas was coming towards Chanju Nullah from the direction of Tikrigarh and that in case Naka was organized, he could be caught red handed. Entry, with respect to the said information, was made in the Rojnamcha, copy Ex. PE. Intimation was sent to Incharge, Police Post, Nakrod, which is at a short distance from Chanju Nullah, to arrange a Naka. PW-11 Whether reporters of the local papers may be allowed to see the judgment? …2… ASI Mangal Singh also rushed to Chanju Nullah. Around 11 p.m., respondent was seen coming on foot from Tikrigarh side. He was overpowered. He had a bag slung on his left shoulder. On search, it was found that it contained Charas, which, on being weighed, was found to be 1 kg. Two samples, each weighing 10 grams, were separated and put into two separate empty match-boxes. Those match-boxes were made into parcels and were sealed with a seal that produced the impression of English letter ‘R’. Bulk stuff was made into another parcel and that parcel was also sealed with the same seal. One of the two samples was sent to the Chemical Examiner, who vide report Ex. PL opined that the contents of the sample were Charas. 3. Learned trial Court acquitted the respondent holding that there was no compliance of mandatory provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, Chemical Examiner, Kandaghat, to whom the sample was sent for analysis, was not competent to analyse the sample and the independent witnesses associated by the prosecution, at the time of search, did not support its case. 4. We have heard the learned Assistant Advocate General as also the learned counsel for the respondent and perused the record. 5. Recovery was not effected from the personal search of the respondent, but from the search of his bag …3… and, therefore, Section 50 of the Narcotic Drugs and Psychotropic Substances Act, was not attracted. Similarly, view taken by the learned trial Court that Chemical Examiner, Kandaghat, was not competent to examine and analyse the sample of Charas, is not correct. This Court’s judgment in Pawan Kumar versus State of Himachal Pradesh, Criminal Appeal No.2 of 1995, decided on 26th August, 1996, relied upon by the trial Court, has been overruled by the Hon’ble Supreme Court. 6. Non-supporting of the prosecution case by the independent witnesses can also not be a ground for acquittal by itself. However, we are of the considered view that for the following reasons this is not a fit case for interference with the judgment of acquittal. 7. The two police officials examined by the prosecution to prove the search and seizure have made contradictory statements, indicating that the respondent might not have been apprehended at Chanju Nullah. PW-10 Constable Dev Raj stated that a Constable by the name of Mohinder Singh was deputed to fetch scale and weights from a shop at a distance of 1 km for the purpose of weighing the recovered stuff, while PW-11 Mangal Singh, the Investigating Officer, stated that it was PW-10 Dev Raj, who had been deputed to arrange the scale and weights. The contradiction though, on the face of it, may not appear to be significant, yet when seen in the light of the fact that …4… the independent witnesses have not supported the prosecution case and also the fact that according to the independent witnesses, respondent was not apprehended at Chanju Nullah, the contradiction assumes significance. It suggests that probably the respondent was not arrested at Chanju Nullah nor was the recovery effected at that place. 8. Further, docket portion of Ex. PL, report of the Chemical Examiner, suggests that the sample part, which was sent to the Chemical Examiner, was marked with letter ‘A’. Neither the Investigating Officer nor any other witness examined by the prosecution testified that either of the two samples was marked ‘A’, leave alone their saying that the one, which was sent to the Chemical Examiner, bore such a mark. In view of the abovestated position, appeal is dismissed. ( Surjit Singh ), J March 17, 2010(sd) ( Rajiv Sharma ), J