IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 374 of 2001 Date of Decision : 1st July, 2011. State of Himachal Pradesh Appellant Versus Prem Sagar Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vivek Singh Thakur, Addl. Advocate General. For the respondent : None. Deepak Gupta, J. (Oral) This appeal is directed against the judgment dated 24.3.2001 delivered by learned Sessions Judge, Kangra at Dharamshala in case No. 27-D/VII/2000 whereby the accused was acquitted of having committed an offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). 2. The prosecution story, in brief, is that on 12.9.2000, PW11 SI Karam Chand of Police Station Dharamshala was present at Fatehpur Chowk in connection with the investigation of a case FIR Whether reports of Local Papers may be allowed to see the judgment? 2 No. 162/2000. The police party was searching for one accused Banti allegedly a thief, who was suspected of having committed theft which is the subject matter of the FIR No. 162/2000. The police officials associated two independent witnesses PW1 Sanjay Guleria and PW2 Desh Raj and proceeded towards Sukkar. When they were near the Shivaji Temple, they saw a person coming from the other side on a scooter. On seeing the police party, the said person suddenly stopped the scooter and tried to run away. The police officials suspected that the person may be Banti and apprehended him. On interrogation, the person told that he is Prem Sagar. Personal search of the accused was conducted and on the search one kilogram of charas was recovered from a yellow polythene bag, kept under his pant. Thereafter the codal formalities were completed on the spot and a challan was filed against the accused. Accused did not plead guilty and claimed trial. After trial, the accused has been acquitted. Hence, this appeal. 2. The first question arising for consideration is whether there is violation of Section 50 of the Act. As per the Investigating Officer, PW11 SI Karam Chand, the charas was recovered from the yellow coloured polythene bag which was beneath the pant of the accused. This clearly shows that this was a case of personal search of the accused. Therefore, the provisions of Section 50 of the Act are attracted and the same had to be complied with. There is not a whisper in the entire statement that an option was given to the accused that he had a right to be searched before a Magistrate or a 3 Gazetted Officer. Therefore, the learned trial Court was justified in holding that there is violation of the provisions of Section 50 of the Act. 3. As far as the merits of the case are concerned, again there are contradictions in the statements of the witnesses. Two independent witnesses had not at all supported the prosecution case and according to them they were not members of the searching party. As held by the learned trial Court there is no explanation why the independent witnesses would be associated with a police team which was only trying to apprehend the accused during the investigation. This casts a serious doubt on the prosecution story. 4. Another aspect is that PW3 Anil Kumar from whose shop the police officials were alleged to have brought scales, has totally denied this fact and this also casts doubt on the version of the prosecution. The learned trial Court has also pointed out that there are contradictions in the statements of the police officials. Other independent witnesses turned hostile and when there are contradictions in the statements of the police officials then it is difficult to convict and sentence the accused on the statements of officials witnesses. 5. The police case was that they had gone to investigate the case FIR No. 162/2000 and to apprehend accused Banti. DW2 Gur Singh, Criminal Ahlmad produced the record of the criminal case arising out of the case FIR No. 162/2000 and in this case none of the three accused persons was named as Banti. It is urged on behalf 4 of the State that Banti could be a person who was investigated during the course of the investigation but not arrayed as an accused. But when Gur Singh came with the record what prevented the Public Prosecutor from cross-examining him on this point from the record produced by him including the FIR and other investigation record which forms the part of the case to show that the accused Banti was one of the person who was investigated in the case. In fact there is no material in this regard. Therefore, the learned trial Court was justified in acquitting the accused. We find no merits in the appeal which is accordingly dismissed. (Deepak Gupta), Judge. (Sanjay Karol), Judge. July 01, 2011 (jai)