IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 43/1996 Date of decision: 16.12. 2009 State of H.P. …..Appellant Versus Ashok Kumar ……Respondent Coram: The Hon’ble Mr. Justice Surjit Singh, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. P.K. Sharma, Addl. Advocate General with Mr. Ramesh Thakur Assistant Advocate General. For the respondent : None. Surjit Singh, J (Oral) This appeal by the State is directed against the judgment dated 14.11.1994 of learned Sessions Judge, Shimla, whereby respondent Ashok Kumar, who was tried for an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has been acquitted. 2. Facts on which the respondent was tried for the said offence, may be 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - noticed. On 27.7.1992, PW6 Parmod Shukla A.S.I. accompanied by PW4 Head Constable Virender Singh and other Constables was present near the Rain-shelter of Long Wood, Shimla. He saw the respondent leaving the Rain-shelter and going towards public latrine. A bag was slung on one of his shoulders. He was commanded to stop as PW6 Parmod Shukla suspected that he might be carrying some contraband in the bag. He was informed that it was intended to search his person and was given an option of being searched in the presence of a Magistrate or a Gazetted Officer of any of the Departments notified under Section 41 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He opted to be searched on the spot by PW6 A.S.I. Parmod Shukla. On search of his bag, two polythene bags containing charas were recovered. One bag contained 650 grams of charas and the other 750 grams. Two samples from each of the two bags were separated and marked I, II, III and IV. All the four samples and the bulk charas were made into separate parcels, which were sealed with a seal that produced the - 3 - impression of letter ‘T’ of English alphabet. One sample taken from each of the two plastic bags was sent to the Chemical Examiner, who vide report Ext. PZ opined that the samples were of charas. 3. Prosecution examined PW6 Parmod Shukla, PW4 Head Constable Virender Singh and two independent witnesses, namely, PW1 Vidya Dutt and PW2 Puran Chand to prove search and seizure. To link the report Ext. PZ with the stuff allegedly recovered from the respondent, it examined PW3 Constable Gopal Singh only, who allegedly carried the samples to Kandaghat Laboratory. 4. Respondent pleaded not guilty and stated that neither he was carrying any bag nor was anything recovered during the course of his personal search. 5. Learned trial Court acquitted the respondent holding that mandatory provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 had not been complied with and also some persons, who were standing beside the respondent in the Rain-Shelter, had not been cited as witnesses. - 4 - 6. We have heard the learned Additional Advocate General for the appellant-State and perused the record. Nobody has appeared on behalf of the respondent. 7. Though, we do not find ourselves in agreement with the trial Court’s view that the respondent was entitled to acquittal on account of non-compliance of provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act because the stuff was recovered not from the personal search of the respondent but from search of his bag, yet we find that the link evidence in this case does not connect the report Ext. PZ of Chemical Examiner with the stuff allegedly recovered from the respondent. PW6 A.S.I. Parmod Shukla stated that he had sealed the parcels containing samples with the seal that produced the impression of letter ‘T’ of English alphabet. However, the report of the Chemical Examiner says that the samples which were examined bore impression of two different seals, i.e., ‘T’ and ‘VS’. There is no evidence as to - 5 - who had affixed the other seal having impression ‘VS’ on the sample parcels. 8. PW6 Parmod Shukla did not say that he had produced the case property to the S.H.O. or it had been deposited with the Incharge Malkhana of the concerned Police Station. Prosecution did not examine anybody from the concerned Police Station to get it testified that the case property had been deposited with the S.H.O. or in the Malkhana. PW3 Gopal Singh stated that he carried ‘the sample’ to Kandaghat Laboratory. He did not elaborate as to who had handed over ‘the sample’ to him for carrying the same to the Laboratory. His statement that he carried ‘the sample’ suggests that he carried only one sample. Report Ext. PZ pertains to two samples, one from each of the two bags, allegedly recovered from the respondent. PW3 Gopal Singh also did not state as to whether the sample, which he carried, was in a sealed parcel or loose nor did he say that the sample pertained to case in hand. 9. For the foregoing reasons, we do not think this to be a fit case for - 6 - interference with the judgment of acquittal. Appeal is, therefore, dismissed. (Surjit Singh),J. December 16, 2009 (Surinder Singh),J (cm)