IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 598 of 2002 Date of judgment: June 26, 2009 Devinder Singh & ors. ..Appellants. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Anil Chauhan & Mr. Yash Chauhan, Advocates. For the Respondent : Mr.Ramesh Thakur, Asstt. Advocate General. Surjit Singh, J. (Oral) Appellants are aggrieved by the judgment dated 9.8.2002 of learned Sessions Judge, Kullu, exercising the powers of Special Judge, under the Narcotic Drugs and Psychotropic Substances Act, 1985, whereby they have been convicted of offence, under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.8000/-; in default of payment of fine to undergo imprisonment for 6 months, each. Whether reporters of the local papers may be allowed to see the judgment? - 2 - Prosecution case, which led to the conviction and sentence of the appellants, is like this. On 27.12.2001, around 7.45 pm, Jeep No. HP-49-467, by which the appellants were travelling, was intercepted by Balwant Singh (PW7), SHO, Police Station, Banjar, at a place called Fagu-Pul, Banjar, in the presence of Constable Sunil Kumar (PW5), Head Constable Narain Singh (PW6) and two more constables. Appellants were given the option, whether they would like to be searched at the spot by SHO or to be taken to a Gazetted Officer or a Magistrate, for the purpose of search. Appellants opted for being searched on the spot. On search of person of Padam Singh, 275 grams Charas was recovered from inside the socks, which he was wearing, on search of person of Devinder Singh, 300 grams Charas was recovered from inside his socks and on search of person of Bhupender Singh, 250 grams Charas was recovered from inside his socks. Two samples, each weighing 25 grams, were separated from the stuff recovered from each of the three appellants. One sample out of the samples taken from the stuff recovered from each of the appellants was sent to the Chemical Examiner, who opined 22.66% cannabis plant resin, in the sample of stuff recovered from Padam Singh, 17.50% cannabis plant resin, in the sample of stuff recovered from Devinder - 3 - Singh and 16.42% cannabis plant resin, in the sample of stuff recovered from Bhupender Singh. On the basis of percentage of resin, the exact quantity of Charas allegedly recovered from the appellants, comes to 62.32 grams, in the case of Padam Singh, 52.5 grams in the case of Devinder Singh and 41 grams in the case of Bhupender Singh. Trial Court charged the appellants with offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, and convicted and sentenced them, as aforesaid. I have heard the learned counsel for the appellants as also the learned Assistant Advocate General and perused the record. From the testimony of PW7 Balwant Singh, SHO, inference can be drawn that he had prior knowledge about the appellants carrying some narcotic drug and psychotropic substance, because there were five occupants, including the appellants, in the jeep and two of them were made witnesses and the remaining three, i.e. the appellants, were given option for being searched. That means Section 50 of the Narcotic Drugs and Psychotropic Substances Act, was applicable. However, the requirements of said provision of law had not been complied with, in letter and spirit. Appellants were required to be apprised that they had a right to be searched in - 4 - the presence of a Gazetted Officer or a Magistrate but none of the witnesses, including PW7 Balwant Singh, stated that they were apprised of this right. Only an option was given to them to be taken before a Gazetted Officer or a Magistrate, for the purpose of search of their person. Also, the testimony of PW7 Balwant Singh and another witness, namely, Narain Singh, (PW6) Head Constable, renders the entire prosecution story very doubtful. These two witnesses testified that they returned to the police station after effecting the recovery at 9 pm. However, testimony of PW5 Sunil Kumar and PW2 Mohan Lal, suggests that the police party, headed by PW7 Balwant Singh, was there at the Police Station at 4.45 pm. PW5 Sunil Kumar Constable stated that he carried three samples of the stuff, recovered from the appellants to the Chemical Laboratory on 23.12.2001, itself. PW2 Mohan Lal also stated that case property along with samples, had been deposited with him at 4.45 pm on 23.12.2001 and the samples were sent by him to the Chemical Laboratory, on the same day through Constable Sunil Kumar (PW5). Road certificate Ex.PW2/E, proved by the prosecution, as also entry in the Register Rojnamcha, copy Ex.PW2/D, also show that the samples were dispatched to the Chemical Laboratory on 23.12.2001. These entries and testimony of PW5 Sunil Kumar - 5 - and PW2 Mohan Lal, also belie the testimony of Balwant Singh (PW7) that he returned to the Police Station on 23.12.2001 at 9 pm. Case of the appellants is that nothing was recovered from them and that they were taken to the police station and Charas was planted upon them. In view of the above stated position, I am of the considered view that the case of the prosecution does not stand established, beyond reasonable doubt. Hence, appeal is accepted, judgment of the trial Court is set aside and the appellants are acquitted. Fine, if already paid by the appellants, is ordered to be refunded to them. June 26, 2009 (Surjit Singh), J. s.