HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 184 of 1995 Decided on: 24.3.2009 State of Himachal Pradesh ……… Appellant. Versus Des Raj ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr. P.K. Sharma, Additional Advocate General & Mr.Rajesh Mandhotra, Deputy Advocate General For the respondent: Mr.Rakesh Jaswal, Advocate. Deepak Gupta, J. (Oral): This appeal is directed against the judgment, dated 1.6.1994, delivered by the learned Sessions Judge, Mandi, Kullu & Lahaul Spiti Districts at Mandi, in sessions trial No.31 of 1993, whereby he has acquitted the accused of having committed offence punishable under Section 20 of the Narcotics and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The prosecution case in brief is that on 19.1.1993, PW-12 Harish Chand, Investigating Officer, received a written secret information at about 4.15 p.m. to the effect that the accused is dealing in charas. He allegedly drew up a Ruka Ext.PD and forwarded the same to Police Station, Sunder Nagar, where the FIR Ext.PE was recorded. He joined independent witnesses Amar Nath and Ram Lal ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - and this party went to the store of the accused at Slapper. On search of the store, one 1 kg. and 100 grams of charas was recovered. Two samples of 50 grams each were drawn. The remaining bulk charas as well as the two samples were kept in separate parcels and sealed. Thereafter, the accused was arrested and special report is alleged to have been sent to the Superintendent of Police, Mandi on 19.1.1993 itself. One of the samples of the charas was sent to the Forensic Science Laboratory, Shimla and on analysis, it was found to be a sample of charas. Thereafter, the challan was filed against the accused. The accused was summoned and charged for having committed offence punishable under Section 20 of the Act, to which he pleaded not guilty and claimed trial. The learned trial Court has acquitted of the accused on the ground that there is non-compliance of provisions of Sections 42 and 57 of the Act and also on the ground that the search was not conducted in accordance with law inasmuch as the independent witnesses never entered the store. Section 42 of the Act entitles an empowered official to search the premises. It is only in case the empowered official feels that there is no time to obtain a search warrant that he is entitled to carry out the search himself and he must record reasons in writing as to why he could not obtain the search warrant. No material has been placed on record to show that the Investigating Officer was an official empowered to carry out the search in terms of Section 42 of the Act. The Investigating Officer has not given any reasons as to why he did not obtain the search warrant. Even while being examined in the Court, he has admitted that Slapper is at a short distance both from Bilaspur and Sunder Nagar, but he did not try to obtain the search warrant. According to the Investigating Officer, he has sent the report under Section 57 of the Act to his superior officer and copy of this report is Ext.PG. However, PW-7 ASI Onkar Chand, the then Reader of the Superintendent of Police, Mandi, has stated that the copy of the report is not on the court file and, - 3 - therefore, the only inference which can be drawn is that Ext.PG is not a copy of the report sent to the office of the Superintendent of Police. Therefore, there is non-compliance of the provisions of Section 57 of the Act also. Lastly, the Investigating Officer himself has clearly stated in cross examination that only he and one other police official entered the store and the independent witnesses stood outside the store when the search was carried out. This makes the search illegal. Once the police officials had prior information and had associated independent witnesses, then it was incumbent that these witnesses should have accompanied the police officials inside the store to dispel any doubt about the veracity of the search. In view of the above discussion, we find no merit in the appeal filed by the State of H.P., which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. (Deepak Gupta), Judge. March 24, 2009. (V.K. Ahuja), (TILAK) Judge