IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.156 of 1996. Decided on: December 2, 2009. _______________________________________________________ State of H.P. ……..Appellant. Versus Prem Singh ……..Respondent. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr.Ramesh Thakur, Asstt. Advocate General. For the respondent : Mr. K.S. Thakur, Advocate, vice counsel. ____________________________________________________ SURINDER SINGH J,(oral): State has challenged the acquittal of the respondent, for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’, allegedly for keeping in possession 900 grams of Charas. We have heard the learned counsel for the parties and have examined the evidence on record. In brief, the prosecution case is that on 5th January, 1994, at 10 a.m., a police party, headed by PW7 S.I. Nihal Chand, was patrolling in village Khundan alongwith the other police officials. The respondent was Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - in the nearby shop of PW1 Om Narayan and on seeing the police party, he tried to escape. Police entertained suspicion, thus apprehended him. The smell of Charas was emanating from him. S.I. Nihal Chand asked his identity and associated PW1 Om Narayan and PW 2 Ses Ram as independent witnesses and gave an option to the respondent, either to be searched by the police officials or before the Gazetted Officer or a Magistrate. To this effect, Memo Ex.PW1/A was executed. Respondent exercised his option to be searched by the police party. To this effect, he made endorsement on the same memo. During the search from the left and inner pockets of his Coat, police recovered one polythene packet each containing Charas and also one packet from the ticket pocket of the Pant. All the three parcels contained Charas in the form of sticks. Police weighed all the packets and it was found to be 900 grams. PW7 S.I. Nihal Chand separated two samples of 25 grams each from the recovered quantity and sealed in two parcels Exts.P2 and P3 with seal producing the impression of English letter ‘N’. Remaining bulk Charas was also sealed in a separate parcel with the same seal. A sample of seal was separately taken on a piece of cloth Ex.P1. Seal after its use was handed over to PW2 Ses Ram. Case property was taken into possession vide memo Ex.PW1/B. - 3 - Respondent was arrested and grounds of arrest were informed to him. A ruqa for registration of the case was sent to the Police Station, on the basis of which, FIR Ex.PW3/C was formally registered. The site plan Ex.PW3/A of the place of recovery was also prepared. Special report Ex.PW4/A was sent to S.P. Kullu, through PW4 C. Vijay Kumar, on the same day. Case property was deposited with PW6 MHC Kanwar Singh alongwith NCB forms in triplicate. On 6.1.1994, PW6 MHC Kanwar Singh sent a sample parcel to CTL Kandaghat vide RC No.3/94 through PW3 C. Nand Lal, who on its deposit on 7.1.1994, obtained the receipt and handed it over to the MHC aforesaid. The sample was analyzed in the Laboratory. It was found to have contained 30.20% resin of the Cannabis plant and it was opined to be the “Charas”. After completing the investigation, challan was presented against the respondent in the Court for his trial. The respondent was accordingly charge-sheeted. He pleaded not guilty and claimed trial. To prove the case, prosecution examined its witnesses and the respondent was also examined under Section 313 of the Code of Criminal Procedure. He denied the recovery of Charas from his possession and alleged false implication. - 4 - The aforesaid independent witnesses did not support the case of the prosecution and the learned trial Court noticed some contradictions in the statements of the official witnesses. Thus, the case of the prosecution was held to be doubtful and acquitted the respondent, which is under challenge. The above facts clearly reveal that it is a case of recovery of the Charas on the personal search of the respondent; therefore, the compliance of Section 50 of the Act is mandatory requirement. PW7 S.I. Nihal Chand testified that on apprehending the respondent, the smell of Charas was emanating from him, thus, he became suspicious that he might be having some contraband with him, therefore, he associated independent witnesses and gave him option in writing, Ex.PW1/A to satisfy the requirement of Section 50 of the Act, to be searched either by the police party or before a Gazetted Officer or a Magistrate and the respondent opted to be searched by the police party. But, neither the memo Ex.PW1/A, nor his deposition reveals that the respondent was apprised of his right to exercise such an option. The failure to inform the person concerned about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to him. Merely asking the accused to be searched before a - 5 - Gazetted Officer or a Magistrate cannot be treated as a communication to him to conclude the requirement of the mandate of Section 50 of the Act. Thus in absence of this, we are constrained to hold that there has been non- compliance of Section 50 of the Act. Further, on the scrutiny of the evidence, we find that independent witnesses PW1 Om Narayan and PW2 Ses Ram have not supported the prosecution case. Although, the testimony of the police officials can be acted upon, but it must be worth inspiring confidence. There is a material contradiction in the version of PW7 S.I. Nihal Chand and PW3 C. Nand Lal. PW7 S.I. Nihal Chand stated that during the personal search of the respondent, one polythene packet was recovered from the left pocket and another from the right inner pocket of the Coat and the third packet of Charas was recovered from the ticket-pocket of the Pant, whereas PW3 C. Nand Lal stated that only two polythene packets were recovered on the personal search of the respondent, i.e. one from the Coat and another from the ticket pocket of his Pant. He did not say anything about the third packet. Further there is a glaring ambiguity emerging from the evidence on record. The sample parcel, which was alleged to have been sent to the Laboratory by PW6 MHC Kanwar Singh through PW3 C. Nand Lal, was identified as Ex.P3 during the trial of the case. How it - 6 - came to their possession is not explained nor there is anything on record to show that after its analysis, it was returned by CTL, Kandaghat. Therefore, the benefit of doubt, in the above circumstances was rightly extended to the respondent. As such, we find no merit in the appeal. Accordingly, it is dismissed. The respondent is discharged of his bail bonds, entered upon by him during the proceedings of the case. Send down the records. (Surjit Singh) Judge. (Surinder Singh), Judge. December 2, 2009. (Pds)