IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 378 of 1998. Decided on: 15.05.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Vinay Singh. …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. Dharamvir Sharma, Advocate. --------------------------------------------------------------------------------- Surjit Singh, Judge(Oral) : This appeal by the State, under Section 378 of the Criminal Procedure Code, seeks reversal of the judgment dated 23.05.1998, whereby respondent Vinay Singh, who was charged with and tried for offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has been acquitted. 2. Case of the prosecution is that on 11.01.1995, when PW-8 S.I. Chuni Lal of Police Station, Sadar alongwith some other Police Officials and two independent 1 Whether the reporters of the local papers may be allowed to see the judgment?. - 2 - persons, namely, Durga Dass (PW-6) and one Kali Charan, and some officials of CIA staff, was present near Puran Mal Dharamshala, around 1:30 P.M., respondent was seen coming from Bus Stand side. On seeing the Police, he became nervous, turned about and attempted to flee. He was over-powered by the above named S.I. and other officials accompanying him, and it was intended to search his person. Respondent was made aware of his right to be searched by a Magistrate or a Gazetted Officer of any of the Departments notified for the purpose. Respondent opted for being searched in the presence of a Gazetted Officer. In the meanwhile, Additional Superintendent of Police, Himanshu Mishra (PW-5) reached there. Respondent was carrying a bag. On search of that bag, a green coloured polythene bag containing 1.5 K.G. Charas was recovered. Two samples, each weighing 25 grams were separated. Samples and the bulk were made into three separate parcels which were sealed with a seal that produced impression of English letter ‘A’. Written report of the matter was drawn, which is Ex.-PW3/E and sent to the Police Station for registration of the case. Case was registered vide F.I.R. Ex.-PW3/B. One of the sample parcels was sent to the Chemical Examiner, who vide report Ex.-PW8/E, opined that the contents of the sample parcel were of Charas. 3. Prosecution examined PW-2 A.S.I. Ram Singh, PW-5 Himanshu Mishra, PW-6 Durga Dass and PW-8 S.I. - 3 - Chuni Lal to prove the search and seizure. To connect the report of the Chemical Examiner, Ex.PW-8/E with the stuff recovered from the respondent, prosecution examined PW-1 Constable Naresh Kumar, who carried the sample to the Chemical Laboratory and PW-8 S.I. Chuni Lal. 4. Trial Court acquitted the respondent, holding that this was a case of non-compliance of mandatory provisions of Sections 50, 55 and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and also that report Ex.-PW-8/E had not been linked to the stuff recovered from the respondent. 5. We have heard the learned Assistant Advocate General as also the learned counsel for the respondent and gone through the evidence. 6. Recovery in this case was effected from a bag, which the respondent was carrying and not from the search of his person and, therefore, Section 50 was not attracted. Provisions of Sections 55 and 57 are not mandatory, but only directory and their non-compliance does not entitle the accused to acquittal, unless some prejudice, on account of non-compliance of this provision, is proved. 7. However, we do find ourselves in agreement with the finding of the trial Court that report Ex.-PW8/E of the Chemical Examiner has not been linked with the stuff recovered from the respondent. According to the prosecution, three parcels, two containing samples and the - 4 - third containing bulk recovered stuff, were sealed on the spot and seal after use, was given to Kali Charan. Said Kali Charan has not been examined. Case property, i.e., three sealed parcels were required to be deposited with the S.H.O., as per provisions of Section 55. PW-8, S.I. Chuni Lal, who prepared those parcels, did not testify that he had deposited the parcels with the S.H.O. Not only this, he stated that on the next following day, i.e., 12.01.1995, he sent one sample parcel through Constable Naresh Kumar (PW-1) to the Chemical Laboratory. Naresh Kumar simply stated that one parcel alongnwith road certificate was given to him and he carried the same to the Chemical Laboratory. He did not say as to who had handed over the parcel to him. Report of the Chemical Examiner, Ex.-PW8/E, bears a stamped certificate that seal impressions on the parcel tallied with the specimen seal impressions received separately. There is no evidence that specimen expressions of seal had been sent to the Chemical Examiner either separately or alongwith sample parcel. As already noticed, Naresh Kumar (PW-1) did not say that he carried alongwith seal any specimen impression of the seal. Chuni Lal (PW-8) also did not say that he sent specimen impression of the seal with the parcel. Specimen seal impression was not affixed on the docket portion of Ex.-PW8/E either. But the certification of the Examiner, as already noticed, is to the effect that the seal impression on the parcel tallied with the - 5 - specimen seal impressions received separately. That means, report Ex.-PW8/E pertains to the sample of some other case, in which besides the sample parcel, specimen impression of the seal had also been sent to the Chemical Examiner. For the foregoing reasons, we are not inclined to interfere with the judgment of acquittal, passed by the trial court. Consequently, the appeal is dismissed. (Surjit Singh), Judge (Rajiv Sharma) Judge May 15, 2010. (bhupender) - 6 -