IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.187 of 2000 Decided on November 11, 2010 State of H.P. …Appellant. Versus Bhumi Ram …Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? For the appellant: Mr. R.K.Sharma, Senior Additional Advocate General. For the respondent: Mr. K.D.Sood, Advocate. Justice R.B.Misra, J. (Oral) The present Criminal Appeal has come up for consideration by virtue of granting leave to appeal under Section 378 (3) of the Code of Criminal procedure in reference to judgment dated 1.12.1999, passed by learned Special Judge, Kullu, H.P. in Sessions Trial No.4 of 1999, for alleged offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’), whereby the alleged accused / respondent was acquitted. 2. The prosecution case is that on 25.10.1998, the SHO alongwith other police officials were going towards Manikarn near Hurludhar at about 3.00 PM. The accused on seeing the police ran away. Accused was apprehended and police got him. After obtaining his consent, on search of his bag 2.00 Kg of charas was recovered from the accused. Out of the recovered ‘charas’ two samples of 25 grams were taken and the case property and samples were sealed at the spot. Investigation was made and the respondent/accused was charged for the offences under Section 20 of N.D.P.S. Act. 3. In order to prove its case, the prosecution has examined as many as six witnesses, whereas, the alleged respondent / accused through his statement under Section 313 CR.P.C. has denied the prosecution case. 4. After going through the testimony of the prosecution witnesses PW-4 Gangbir Singh, it shows that he recorded FIR and sent the sample of charas to CTL Kandaghat. 5. PW-5 Chet Ram present at the time of search has said that accused was apprehended 20 mtrs away from the road and no independent witness available at the spot, however, recovery of 2 Kg. charas was made available. PW-5 further told that no population was visible within a radius of about one kilometer. 6. PW-6 SHO Nihal Singh in his endeavour to prosecution case has said that after usual formalities the recovery of charas was made and in cross examination he has admitted that Manikaran road is very busy road. PW-6 also stated that village Chhlal is situated on the other side of Parvati river. PW-6 had not called any person from village Chhlal. PW-6 further told that, he did not make endeavour to associate independent witness. 7. Taking into consideration, the testimony of PW-5 and PW-6, it appears that no effort was made to call and associate independent witness from village Chhlal or from Kutir Guest House which were situated near the place where the accused was apprehended. More so, compliance of mandatory requirement of provisions of Section 50 of N.D.P.S Act has not been made as the respondent/accused was not apprized of that he entitled to be searched and he had right to be searched before a magistrate, Gazetted Officer or a police party. Obtaining consent of the respondent / accused is not the compliance of mandatory requirement of provisions of Section 50 of N.D.P.S. Act. Non compliance of mandatory requirement of provisions of Section 50 of NDPS Act alone is sufficient to make the prosecution case fatal. Endeavour to support prosecution case by other official witnesses are not material for the lack of non corroboration of the prosecution case by the independent witnesses. 8. In the facts and circumstances for not complying with the mandatory requirement of provisions of Section 50 of N.D.P.S. Act, the prosecution case cannot be said to have been proved beyond reasonable doubt. 9. In view of the aforesaid circumstances, learned Special Judge has rightly come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt and in our considered view also the prosecution has failed to bring home the guild to the respondent / accused. 10. Resultantly, the appeal fails, being devoid of any merit as such the same is dismissed. Bail bonds furnished by the accused / respondent are hereby discharged. (R.B. Misra) Judge (Kuldip Singh) Judge November 11, 2010 (ls)