1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 468/1996 Decided on September 9, 2010 State of H.P. …Appellant. VERSUS Krishan Kumar ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr.Anil Jaswal, Dy.AG and Mr. J.S.Rana, Assistant Advocate General. For the respondent: Mr. Chaman Negi, Amicus Curiae. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 3.11.1995 passed by learned Sessions Judge, Sirmaur District at Nahan, HP in Sessions Trial No. 36-N/7 of 1995, thereby acquitting the respondent / accused for the offence under Section 20 of Narcotic Drugs and Psychotropic Substances Act, in reference to case FIR No. 124/94 dated 2.12.1994. 2. Mr. Chaman Negi, Advocate is requested to assist the court as Amicus Curiae. He has agreed to assist the court. Whether the reporters of the local papers maybe allowed to see the judgment? 2 3. The prosecution case is that on 2.12.1994, Dy. S.P. S.R. Sharma along with ASI Partap Chand, Head Constable Ranjit Singh, other police officials and one witness Dharam Singh was on traffic duty in the area of Rajgarh. At about 12 noon when they were standing on the road near the residence of Dy. S.P, one person coming on scooter No. CH-01 J-0881 from Rajgarh side was stopped. On suspicion, personal search of the accused/respondent was made after apprising him that whether he wanted his search by police official, before a Magistrate or a gazetted officer. Personal search of the accused was conducted by S.R. Sharma, Dy.S.P. A cotton ‘Thailli” with polythene pouch from the shirt underneath the sweater worn by the accused was taken out and 300 grams of ‘Charas’ was recovered from the accused/respondent. Two samples of 10 grams each were taken from the ‘Charas’ and thereafter sealed in separate packets and taken into possession. The property along with the samples were sent to the chemical Examiner. On investigation, the accused/respondent was charged for the aforesaid offence and the case was committed to session trial. 4. In order to prove its case, prosecution has examined as many as 6 prosecution witnesses, whereas through his statement under Section 313 Cr.P.C, accused/respondent denied the prosecution case. 5. Out of six prosecution witnesses, Head Constable Ranjeet Singh (PW-1), Dharam Singh (PW-2), Dy.S.P. S.R. Sharma (PW-3) and ASI Partap Chand (PW-6) were said to be the witnesses in whose presence contraband good was allegedly recovered from the accused/respondent. Later on, other witness Constable Teja Ram 3 (PW-4), who has received the report Ext PG in the office of Superintendent of Police, Nahan on 3.12.1994, was also examined. 6. On analysis of the prosecution witnesses and materials on record, we notice that Dharam Singh (PW-2), allegedly joined as independent witness, has not supported the prosecution case. He has stated that the police officials, before searching the accused/respondent, has never apprized him that he has a right to be searched or even the accused/respondent was not given a chance that whether he is agreeing for search by police officials, or by Magistrate or by Gazetted Officer. 7. The testimony of Ranjeet Singh (PW-1), Dy.S.P. S.R. Sharma (PW-3) and ASI Partap Chand (PW-5) appears to be contradictory. Undisputedly, Beer Singh was the pillion rider of the scooter of accused/respondent and both of them were at the spot when the police allegedly stopped the scooter. PW-1 has stated that Dy.S.P. had recorded the joint statement of the accused and Beer Singh about their reposing confidence in the Dy.S.P. for conducting their personal search. But Ext PA placed on record is only of the accused and not the joint statement of accused and Beer Singh. Similarly, HC Ranjeet Singh (PW-1) has stated that there was no one present, except Dharam Singh, PW-2, an independent witness when the accused was stopped with scooter, but Dy.S.P. S.R. Sharma has admitted that at that time one Daya Ram was also present and that the scooter of the accused was taken into possession in presence of said Daya Ram also. 8. ASI, Partap Chand (PW-5) has deposed on oath that Ext DA regarding recovery of contraband goods was prepared by him at 4 the instance of Dy. S.P. S.R. Sharma. Thus, it shows that Daya Ram was also present at the time of alleged occurrence, but the said witness has neither been cited nor produced in evidence for the reasons best known to the prosecution. It could only be inferred that if Daya Ram could have been produced, he would not have supported the prosecution case. The most material aspect to be noted here is that before making personal search, the accused/respondent was not apprized of his right to be searched. As such, the mandatory requirement of section 50 of NDPS Act is not complied with. Keeping in view the inconsistencies and that only one independent witness though associated, however, has not supported the prosecution case and the mandatory requirement of Section 50 of NDPS Act has not been complied with, in our considered view, the prosecution cannot be said to have been proved its case beyond reasonable doubt. Therefore, we find no scope for interference in the impugned judgment of the trial court. The criminal appeal, being devoid of merit, is accordingly dismissed. 9. We appreciate the assistance rendered by Mr. Chaman Negi, as Amicus Curiae. ( R.B.Misra ), J. 9th September, 2010 ( V.K.Sharma ), J. (sl) 5