IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.248 of 1994 Decided on: May 7, 2008. State of Himachal Pradesh …Appellant Versus Delu Ram …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 yes For the Appellant : Mr. P.K. Sharma, Additional Advocate General. For the Respondent : Mr. Rameshwar Sharma, Advocate. Surjit Singh, Judge (oral) State has appealed against the judgment of trial Court, whereby the respondent, who was tried for an offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has been acquitted. 2. Prosecution case may be stated like this. On 16.12.1992, around 2 or 2.30 AM, PW-7 SI/SHO Kishan Chand had organized a Nakka at a place called Meru Nullah, within the jurisdiction of his Police Station. Respondent was seen coming on foot from the side of village Grohan. He was questioned by PW-7 SI/SHO Kishan Chand. Respondent was carrying a gunny bag on his back which contained Charas. Respondent was given option to be searched in the presence of a gazetted officer. He opted for being searched before of a gazetted officer. He was taken to a place called Salooni where there is a Tehsildar. That day Tehsildar was not available. Respondent was then Whether reporters of the local papers may be allowed to see the judgment? …2… taken to Medical Officer of PHC Salooni and search was conducted in his presence. Charas contained in gunny bag was recovered, which on weighment was found to be 9.070 Kgs. Two samples, each weighing 10 grams, were separated. The samples and the bulk were made into three separate parcels and sealed with a seal, which produced impression of English letter ‘K’. The Medical Officer also put his own seal on all the sealed parcels and the seal impression read like English letter ‘M’. Search and seizure memo. was prepared. Written report was sent to Police Station for formal registration of the case. Special report of the search and seizure was sent to the Superior Police Officer. Case property alongwith the samples was deposited with PW-5 MHC Chattar Singh. One sample parcel was sent to Chemical examiner, who gave the report that the sample contained contents of Charas. 3. Trial Court has acquitted the respondent holding that independent witnesses had not been associated, provision of Section 50 of the NDPS Act had not been complied with and that the link evidence adduced by the prosecution did not connect the report Ext. PK of the Chemical Examiner with the sample, which was allegedly taken from the stuff recovered from the respondent. 4. We have heard the learned Additional Advocate General as also the learned counsel representing the respondent and gone through the record of the case. 5. Admittedly, Charas was recovered from a gunny bag, which the respondent was carrying on his back. It is by now well settled that provision of Section 50 of NDPS Act is attracted only in the case of personal search of an accused and not when the baggage or any other thing carried by an accused is to be searched. So, acquittal of the respondent, by the trial Court, on this ground cannot be upheld. …3… 6. View taken by the trial Court that the case of the prosecution was bad on account of non-association of two independent witnesses can also not be upheld, because Section 100 Cr. P.C. applies only in cases of search of closed places as is clear from a bare reading of the provision. 7. However, from the record we find that the report of the Chemical Examiner, Ext. PK, does not stand connected with the stuff allegedly recovered from the respondent. PW-7 SI Kishan Chand nowhere stated that he had filled in NCB form at the time of the taking of the sample or even at the time of its despatch to the Chemical Examiner. The NCB form, which forms part of report Ext. PK, purports to have been signed by some ASI, on 27.12.1992. That means the NCB form was filled in by some ASI on 27.12.1992, whereas the search and seizure was made on 16.12.1992. The NCB form does not bear the facsimile of the two seals with which the parcels containing the samples and the bulk stuff were sealed. In the column pertaining to facsimile of the seals letters ‘K’ and ‘M’ are written in hand. 8. It has come in the evidence, per testimony of PW-7 SI Kishan Chand, that specimen impressions of the seals were taken on a piece of cloth Ext. PG. It is not the case of the prosecution that this piece of cloth Ext. PG had been sent to the Chemical Examiner for comparison of the specimen seal impressions thereon with the seal impressions on the parcel containing the sample of the recovered stuff. As already noticed, facsimiles of the seals are also not impressed upon NCB form, forming part of report Ext. PK. That means, facsimiles or specimen impressions of the seals, with which the sample parcel sent to the Chemical Examiner had been sealed, were not available with the Chemical Examiner at the time when he tested the contents of the samples, but his report bears a certificate that the seal impressions on …4… the sample parcel tallied with the specimen seal impressions of the seals, sent separately. None of the witnesses examined by the prosecution has testified that any specimen impression of the seal, with which the parcels had been sealed were sent to the Chemical Examiner, separately. PW-5 MHC Chattar Singh, who sent the sample through PW-6 Constable Balbir Singh did not say that alongwith the sample parcel he had sent any specimen impressions of the seal. He has very categorically stated that he sent only three things, i.e. the sample parcel, the road certificate and the NCB form to the Chemical Examiner, through Constable Balbir Singh. Balbir Singh, who was examined as PW-6, also stated that he carried only the aforesaid three things to the Chemical Examiner. 9. From the above stated evidence, it is clear that specimen impressions of the seals were not sent to the Chemical Examiner. Facsimiles of the seals used in sealing the parcels were also not affixed on the NCB form, as stated hereinabove. But the report Ext. PK reads that the seal impressions on the sample parcel tallied with the sample seal impressions, sent separately. This itself suggests that the report of the Chemical Examiner does not pertain to the stuff allegedly recovered from the respondent, but to some other case in which there were specimen impressions of the seal and the same had been sent, separately, to the Chemical Examiner, alongwith the sample parcels. 10. In view of our above finding that the report of the Chemical Examiner does not stand connected with the stuff allegedly recovered from the respondent, the appeal is dismissed. ( Surjit Singh ), J. May 7, 2008, (ss) ` ( Surinder Singh ), J.