IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr.Appeal No. 450 of 1996. Date of Decision: 25.03.2010. State of H.P. …Appellant. Versus. Partap Singh. …Respondent . Coram: The Hon’ble Mr. Justice Deepak Gupta,Judge. The Hon’ble Mr. Justice Sanjay Karol,Judge. Whether approved for Reporting ? For the appellant: Mr. Vivek Thakur,Addl.A.G with Mr. R.M.Bist,Dy.A.G. For the Respondent. Mr. Anoop Rattan,Advocate. Deepak Gupta,J.(Oral.) This appeal by the State is directed against the judgement dated 27.11.1995 passed by the learned Sessions Judge, Shimla whereby the accused has been acquitted of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act ( hereinafter referred to as the “ NDPS Act”). 2. The prosecution case in brief, is that ASI Bhim Singh was on patrolling duty near Sanjauli Chowk :-2-: on 7.12.1994 along with some other police officials He received secret information that the accused person was coming from Fagu side and was carrying some contraband substance. He accordingly formed a raiding party and associated with it two independent witnesses PW1 Kamlesh Kumar and PW2 Shri Daulat Ram, both of whom have shops near Sanjauli Chowk. He also informed PW8 Shri N.S.Pal, Dy.S.P.,Shimla who also reached the spot. At about 4.15 P.M., the accused came towards Sanjauli Chowk. On seeing the police officials he tried to run away. However, he was apprehended. Thereafter, he was asked for his consent to be searched and he gave his consent. On giving his consent, the police officials gave their search in the presence of the accused and then searched the accused. On his search 1.950 Kgs Charas was recovered from the polythene bag being carried by the accused in his hands. Two samples of 25 grams each were drawn out of the recovered charas. The bulk Charas as well as the samples were sealed with seal ‘K’. The codal formalities were completed on the spot. Thereafter, one of the samples was sent to the Laboratory at Kandaghat and the Chemical Analyst :-3-: opined that the samples was of charas. On this basis, the accused was challaned for having committed the offence aforesaid. After trial, he has been acquitted. Hence the present appeal. Two main points which weighed with the learned trial Court are that this being a case of prior information Section 42 of the Act would be applicable. The trial Court held that the provision of Section 42 had not been complied with at all. The learned Trial Court also held that the provisions of Section 50 had not been complied with. It was mainly on these two grounds that the accused was acquitted. In our considered view, in view of the law which now stands well established, neither the provisions of Section 42 nor the provisions of Section 50 were applicable to the facts of the case. Section 42 will apply in case of prior information where the information relates to contraband being kept or carried in a private place. If the prior information is in respect of contraband substance being carried in a public place then Section 43 of the Act would be attracted and the provisions of Section 42 need not be complied with. Reference in this behalf may be made to the decision of the Apex Court in :-4-: Directorate of Revenue & Another vs. Mohammed Nisar Holia (2008 Vol.2 SCC p-370) . As far as Section 50 of the Act is concerned in view of the law laid down by the apex Court in , State of H.P. Vs. Pawan Kumar Latest HLJ 2004 SC(2) 1247 the same is not applicable when the recovery is made from a bag being carried by the accused. Coming to the merits of the case, we find many flaws in the prosecution case. The recovery in question was stated to have been made on 17.12.1994. According to PW7 Bhim Singh, the Investigating Officer after the recovery was made the bulk charas as well as the sample was sealed with seal ‘K’. He then handed over the same to PW6 Shri Dev Raj Addl.Station House Officer, Police Station,Dhalli. PW6 Dev Raj states that PW7 Bhim Singh brought sealed samples to Police Station Dhalli. The samples were sealed with seal ‘A’ and the seal was handed over after its use to PW5. He does not say a word as to whether he resealed the case property or not. In examination-in-chief this witness does not state :-5-: whether the case property was kept in the Malkhana. However, in cross examination he stated that the case property was handed over to the M.H.C. PW 5 Shri Karam Chand constable states that ASI Bhim Singh brought one sample packet sealed with seal ‘K’. This sample was handed over to PW6 Shri Dev Raj who resealed the sample with seal ‘A’ and the seal was given to him. There are material contradictions between the statements of PW5 and PW6 who affixed seal ‘K’? None of the witnesses states who affixed this seal. Another flaw in the prosecution case is is that neither the MHC of the Malkhana has been examined nor the Malkhana register produced or proved. Admittedly, PW3 constable Rajinder Kumar took the sample on 12.12.1994 from Police Station,Dhalli to the Laboratory at Kandaghat. He does not say that he along with the sample had taken any seal impression. He does not talk about any road certificate being carried by him. There is a difference of five days between the recovery and the sending of the sample to the Laboratory. Where was the case property lying for these five days?. This question :-6-: remains un-answered. As pointed out above, when the recovery was made three parcels were made, one of the bulk charas and two of the samples. PW-5 talks of only one sample being produced by the police. PW6 Dev Raj talks of sealed samples i.e. meaning thereby at least two samples. He does not talk about the bulk charas. The prosecution has failed to prove that the bulk charas was re-sealed or was deposited in the Malkkhana. If, it was deposited, why was the malkhana register not produced? Why has no witness been examined to prove with whom the case property was kept? If it was not kept in the Malkhana, the possibility of the case property being tampered can not be ruled out. Thus, the link evidence in the case is totally missing. In view of the above discussion, the appeal filed by the State is dismissed though on totally different grounds. The case property be destroyed in accordance with law. Bail bonds are discharged. ( Deepak Gupta )J. ( Sanjay Karol ),J. March 25th ,2010.(Rita)