IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.90 of 1996 Decided on : October 7, 2009 State of H.P. …Appellant. Versus Aziz …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent : Mr. Ramesh Sharma, Advocate, vice Mr. N.K. Thakur, Advocate. Surjit Singh, J (Oral) State has appealed against the judgment, dated 14th December, 1994, of learned Sessions Judge, Chamba, whereby respondent Aziz, who was tried for offence of possessing 350 grams Charas, punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, has been acquitted. 2. Case of the prosecution, as per record, is like this. On 27th December, 1993, PW-7 HC Hari Singh, alongwith some other police officials, went for patrol duty towards Bathri from Police Post, Banikhet. PW-3 Sunil Kumar and one Daulat Ram were going ahead of the police party near Banikhet Bus Stand. In the meanwhile, respondent was seen coming from Whether reporters of the local papers may be allowed to see the judgment? …2… Bathri side. On seeing the police, he turned about and tried to avoid confronting the police. That aroused the suspicion of PW-7 HC Hari Singh, who overpowered the respondent and suspected that he (the respondent) might be carrying Charas. So, he informed the respondent that it was intended to search his person, as it was suspected that he was carrying Charas and in case he so desired search of his person could be arranged in the presence of some Gazetted Officer. Respondent allegedly agreed for his search on the spot. On search of his person, he was found to be carrying a bag concealed under his armpit. That bag contained 350 grams of Charas. One sample, weighing 10 grams, was separated. Sample and the bulk Charas were made into separate parcels and the same were sealed with seal that produced the impression of letter ‘A’ of English alphabet. Case property was produced before PW-6 Ram Swaroop, SHO, Police Station, Chamba, who resealed the parcels with his own seal, which produced the impression of English letters ‘RS’ and then deposited the same with MHC PW-4 Dev Raj. PW-4 Dev Raj, on transfer, handed over the charge of Malkhana to PW-1 Budhi Prakash, who sent the sample parcel, through Constable Jallu Ram (PW-2) to the Chemical Laboratory. Chemical Examiner reported that the sample was of Charas. 3. Trial Court has acquitted the respondent holding that mandatory provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act had not been complied with and that otherwise also recovery of Charas from the …3… respondent does not stand established, beyond reasonable doubt. 4. We have heard the learned Assistant Advocate General as also the learned counsel for the respondent. 5. Learned Assistant Advocate General submits that Section 50 of the Narcotic Drugs and Psychotropic Substances Act is not applicable in the present case, as the bag from which the Charas was recovered was not attached to the person of the respondent. We do not agree with the submission, because as per prosecution’s own evidence the bag, which contained only a very small quantity of 350 grams of Charas, had been concealed by the respondent under his armpit. Bag was not visible and it was only after personal search of the respondent that it was found that the respondent had been carrying a bag containing Charas. Therefore, in our considered view, Section 50 of the Narcotic Drugs and Psychotropic Substances Act is attracted. 6. Respondent had not been apprised that he had a right to be searched in the presence of a Magistrate or a Gazetted Officer. He was only asked to give option, whether he wanted to be searched on the spot by PW-7 HC Hari Singh or to be taken to a Gazetted Officer, for the purpose of search of his person. This is not proper compliance with the mandatory provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act. 7. Also, we find from the record that the sample, which was analysed by the Chemical Examiner, per report Ex. …4… PH, does not stand connected with the stuff recovered from the respondent. As per testimony of PW-7 HC Hari Singh, he had affixed three seals, which produced the impression of letter ‘K’ on the sample parcel, but PW-1 Budhi Prakash stated that he had sent the sample parcel bearing two seal impressions, which read like letter ‘K’ and one impression, which read like letters ‘RS’. PW-4 HC Dev Raj though stated that the parcels, which were deposited with him, bore impressions of two seals, viz. ‘K’ and ‘RS’, yet in his statement to the police, under Section 161 of the Code of Criminal Procedure, Ex. DB, with which he was duly confronted, he stated that the parcels bore impressions of only one seal and those impressions read like letter ‘K’ of English alphabet. Not only this, in his statement to the police, under Section 161 of the Code of Criminal Procedure, Ex. DB, he stated that even on the piece of cloth (Ex. PC), there were impressions of only one seal, i.e. ‘K’. 8. In view of the abovestated position, we see no merit in the present appeal. The same is, therefore, dismissed. ( Surjit Singh ), J October 7, 2009(sd) ( Surinder Singh ), J