IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.280 of 2000 Decided on : October 18, 2010 State of H.P. …Appellant. Versus Kartar Singh and others …Respondents. 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. Mr. R.K. Sharma, Senior Additional Advocate General, and Mr. Rajinder Dogra, Additional Advocate General. For the Respondents : Mr. Rajiv Rai, Advocate, vice Mr. Jagdish Vats, Advocate. Surjit Singh, J (Oral) This appeal, by the State, is directed against the judgment dated 21st January, 2000, of learned trial Court, whereby respondents Kartar Singh, Lakhvinder and Ashok Kumar, who were tried for an offence, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, for allegedly possessing opium, have been acquitted. 2. Prosecution case, as per evidence on record, is that on 20th September, 1999, PW-12 ASI Chaman Lal of Police Post Baddi, received secret information that illicit trade of opium was being carried out in a Dhaba, known as Whether reporters of the local papers may be allowed to see the judgment? …2… Guru Nanak Dhaba, at Baddi. PW-12 ASI Chaman Lal formed a raiding party, in which two independent witnesses, namely PW-1 Anwar Mohammed and PW-2 Gurmel Singh, were included. Raiding party went to the Dhaba, aforesaid. Three persons were sitting in the Dhaba. Two of them, namely Ashok Kumar and Kartar Singh, were overpowered and third one, namely Lakhvinder Singh managed to escape. Search of the persons of Ashok Kumar and Kartar Singh was carried out, after intimating them that they had a right to be searched in the presence of a Magistrate or a Gazetted Officer of any of the notified departments and on their consenting to their search by ASI Chaman Lal on the spot. 50 grams opium was recovered from each of the above-named two respondents. Two samples each from the stuff recovered from the above-named two respondents were separated and made into separate parcels. Bulk stuff recovered from each of the two respondents was made into two separate parcels. Parcels were duly sealed. Thereafter, search of the Dhaba was carried out and nine packets, each containing 10 grams opium, were recovered. Two packets were treated as samples and made into parcels and duly sealed. Sample parcels were sent to the Chemical Examiner, who reported that the samples were of opium. On completion of investigation, respondents were challaned. …3… 3. Trial Court, after complying with the requirement of Section 207 of the Code of Criminal Procedure, charged the respondents with offence, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, to which they pleaded not guilty. Therefore, they were put on trial. 4. Prosecution examined ASI Chaman Lal as PW- 12. Two independent witnesses, namely PW-1 Anwar Mohammed and PW-2 Gurmel Singh, were also examined, but both of them turned hostile. Trial Court acquitted the respondents, taking the view that there was non compliance of mandatory provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, so far as respondents Kartar Singh and Ashok Kumar were concerned and that as regards the charge against Lakhvinder Singh, prosecution has failed to connect the said respondent with the affairs of the Dhaba. 5. We have heard the learned Additional Advocate General as also the Advocate appearing vice counsel for the respondents and gone through the record. 6. Though in Memos Ex. PW-1/D and Ex. PW-1/E, it is recorded that the two respondents, namely Ashok Kumar and Kartar Singh, were apprised of their right of being searched in the presence of a Magistrate or a Gazetted Officer of any of the notified departments, yet while in the …4… witness-box, PW-12 ASI Chaman Lal did not testify that the above-named two respondents were informed in the aforesaid terms. He simply stated that the two respondents consented for their search on the spot and so he proceeded to search their persons and in the course of such search opium was recovered. In view of this position, we see no reason to disagree with the reasoning given by the trial Court, in support of the finding that mandatory provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act has not been complied with. 7. As regards the case against respondent Lakhvinder Singh, suffice it to say that the prosecution did not lead any evidence to connect him with the ownership, possession or running of the business of Dhaba in the premises, in question. Investigating Officer, ASI Chaman Lal, while in the witness-box, stated that he was informed by respondents Ashok Kumar and Kartar Singh that Lakhvinder Singh was Incharge of the Dhaba. Even if it be assumed that the two respondents Kartar Singh and Ashok Kumar informed the Investigating Officer, i.e. PW-12 ASI Chaman Lal, that Lakhvinder Singh was the Incharge of the Dhaba, that by itself would not prove the fact. Statements of Kartar Singh and Ashok Kumar made to the Investigating Officer are hit by Section 162 of the Code of Criminal Procedure. Also, their statements to the Investigating …5… Officer are not substantive evidence. They could have been taken into consideration qua this aspect of the matter alongwith some other evidence, which is lacking. Since there is no other evidence, statements of these two respondents are of little consequence. Hence, the appeal is dismissed. ( Surjit Singh ), J October 18, 2010(sd) ( Rajiv Sharma ), J