IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 274 of 1995 Date of decision: 6.11.2008 State of H.P. ... Appellant Versus Sohan Lal … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 For the appellant: 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 31.10.1994 passed by the learned Sessions Judge, Kangra at Dharamsala in Sessions Trial No. 7-D/7 of 1994, whereby he has acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 ( for short: the NDPS Act). 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 The prosecution version in brief is that Inspector Pritam Singh, Station House Officer, Police Station Dharamsala along with some constables were on patrolling duty in the area of Yol on 7.2.1994. At about 4.30 pm, secret information was received by him that a person, namely, Sohan Singh son of Mangtu (accused) was dealing in the sale of narcotics and he was carrying a large quantity of Charas in a blue coloured bag. The information received was reduced into writing and the same was sent to the police station for registration of First Information Report (FIR). Oral information was given to the Deputy Superintendent of Police (Dy.S.P) on telephone and he was requested to join the raiding party. Accordingly, the police party was joined by the Dy.S.P. Balam Ram near Tapovan. The accused was seen on the road carrying a blue coloured bag in his right hand. He was apprehended and on interrogation, disclosed his name. The Inspector told the accused that he intended to search his bag and he was given an option as to whether he would like to be searched in the presence of a Gazetted officer or a Magistrate and the accused allegedly agreed to be searched in the presence of Deputy Superintendent of Police. During search, 3kg. 800 3 gms. of Charas was recovered from four polythene bags which were kept in the blue coloured bag being carried by the accused. Four samples of 25 grams each were taken from these polythene bags. These samples as well as the remaining bulk Charas were separately sealed. Thereafter the sample was sent to the Forensic Science Laboratory and the same was reported to contain Charas. Consequently the accused was challaned and sent for trial. After trial, the learned trial Judge acquitted the accused mainly on two grounds. Firstly, that the provisions of Section 50 of the NDPS Act had not been complied with, since the accused was only given an option of being searched before the Dy.S.P. and he was not given an option as to whether he would like to be searched before a Gazetted officer or Magistrate. The other ground which weighed with the trial court was that there was no evidence on the record to show that the sample seals were sent to the Chemical Examiner and as such there was nothing to link the report on the sample with the seized Charas. As far as Section 50 of the NDPS Act is concerned, we are of the considered view that in view of the law now 4 laid down by the apex Court, the provisions of this section were not applicable to the facts of the present case. The search of the bag was conducted and the charas was recovered from the bag. It was not a case of personal search. If there is any infirmity in the option given to the accused, no benefit can be given to the accused since the recovery was from bag and not from the person of the accused. However, as far as the second point is concerned, we are in agreement with the learned trial Judge. After the samples and the bulk Charas were sealed, the Inspector deposited the same with PW4 Om Prakash who was then additional Muharar Head Constable (MHC) at Police Station, Dharamsala. This witness states in no uncertain terms that no sample seal was handed over to him. PW5 Sarup Kumar, who was Muharar Head Constable, states that he was on leave on 7.2.1994 when the sample was deposited by the Inspector with the additional MHC. When he returned after availing the leave, PW4 handed over the case property to him. According to him, he sent the sample parcel along with sample seal to the Chemical Examiner through Constable Arvind Kumar (PW6), vide road certificate No. 13/21. The 5 road certificate has not been produced or proved. This witness has been confronted with his statement recorded under Section 161 Cr.PC. wherein it is not recorded that the sample seal was also sent along with parcel to the Chemical Examiner. The statement of PW5 is belied by the statement of PW6 Arvind Kumar who actually took the parcel to the Chemical Examiner. He has categorically stated that no sample seal was given to him by the Muharar Head Constable on 14.2.1994. In view of the evidence of PW4 & PW6 and in view of the contradictory evidence of PW5, who has made improvement in his statement in Court, there is a grave doubt as to whether the sample seal was actually sent to the Chemical Examiner or not. In the absence of the sample seal, the Chemical Examiner could not have tallied the seals on the samples with the sample seal. Therefore, no reliance can be placed on the certificate given by the Chemical Examiner that the seal on the packet tallied with the sample seal. This certificate is in the form of a rubber stamp and appears to have been mechanically affixed on the NCB form. 6 In view of the above discussion, it is apparent that the prosecution has miserably failed to prove that the sample seal was sent to the Chemical Examiner and as such the evidence linking the report of the Chemical Examiner to the matter actually seized is missing. Therefore, the accused cannot be convicted. We find no merit in this appeal which is accordingly dismissed. Bail bonds are discharged. ( Deepak Gupta ), J. November 6, 2008 ( V.K.Ahuja ), J. s.