IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.184 of 2000 Decided on November 11, 2010 State of H.P. …Appellant. Versus Gopal Dass @ Pinki …Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? For the appellant: Mr. R.K.Sharma, Senior Additional Advocate General. For the respondent: Mr. Dharamvir Sharma, Advocate. Justice R.B.Misra, J. (Oral) The present Criminal Appeal has come up for consideration after granting leave to appeal under Section 378 (3) of the Code of Criminal procedure in reference to judgment dated 9.11.1999, passed by learned Special Judge, Kullu, H.P. in Sessions Trial No.1 of 1999, for the offence under Section 18 and 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’), whereby the alleged accused / respondent was acquitted. 2. The prosecution case is that on 14.10.1998, Shri Sanjay Kundu, Superintendent of Police Mandi accompanied by Kripa Ram S.H.O and Krishan Dass LHC while coming to Mandi stopped at Narla and Superintendent of Police went tea stall to take tea, whereas other police officials started patrolling at Narla bazaar. P-11, Sub Inspector Kripa Ram received reliable information that accused Gopal Dass alias Pinki deals in the sale of charas in his shop and that he keeps charas in the cloths worn by him. PW-1 Joginder Singh and PW-2 Govind Ram were also sitting in the shop of accused Gopal Dass at that time. Personal search of the accused was taken by the Superintendent of Police and SHO. From the pocket of pant of the accused a polythene packet containing charas was recovered. This charas was weighed and found 50 grams. Thereafter, the search of the shop of the accused was taken and another polythene packet was recovered which contained opium which was also weighed to be 10 grams. Poppy head weighing 40 grams were also recovered. Two samps each were separately drawn. All the three offending articles and the sealed samples were sent to the C.T.L. Kandaghat who found the samples to contain charas and opium and poppy head. After completing formalities and on completion of investigation, the respondent/accused was charged for the aforesaid offences. 3. In order to prove its case, the prosecution has examined as many as twelve witnesses, whereas, the alleged respondent / accused through his statement under Section 313 CR.P.C. has denied the prosecution case. 4. Joginder Singh (PW-1) and Govind Ram (PW-2) associated in the search, however, not supported the prosecution case. Both have not supported the search and recovery of contraband goods. Govind Ram PW-2 has put signature under pressure. 5. PW-11 (Kripa Ram) Sub Inspection stated that secret information at Narla was received that charas and opium can be found from the person of the accused and from his shop if search is taken, however, such information was not reduced in writing by PW-11 Kripa Ram as contemplated under Section 42 of the Act which is directory requirement. 6. In the present case it is not clear whether the search was made by Sanjay Kundu (PW-7) or by Kripa Ram, Sub Inspection (PW-11). 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 apprized that he is entitled to be searched and he had right to be searched before a Magistrate, Gazetted Officer or a police party. Obtaining consent of the respondent / accused is not 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 by other official witnesses are not material for the lack of non corroboration of the prosecution case by the independent witnesses. 7. In the facts and circumstances for non-compliance of the mandatory requirement of provisions of Section 50 of N.D.P.S. Act, the prosecution case cannot be said to have been proved beyond reasonable doubt. 8. 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 guild to the respondent / accused. 9. 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 (Kuldip Singh) Judge November 11, 2010 (ls)