IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 413 of 1999 Decided on 20th September, 2010 _______________________________________________________ State of H.P. …Appellant Versus Pargat Singh and another …Respondents Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. R.K. Sharma, Senior Additional Advocate, General. For respondent: Mr. Bhim Raj Sharma, Advocate. No. 2. Respondent No. 2 produced in custody of Head Constable Kusha Dutt No. 16 and LHC Gurpreet Singh No. 404. Justice R.B. Misra,J (oral). In reference to order dated 12.8.2010, the accused/respondent Baljeet Kumar has been brought before us in police custody by Police Officials, namely, Head Constable Kusha Dutt, No. 16 and LHC Gurpreet Singh No. 404 and it has also been brought to the notice of this Court that other accused/respondent, namely, Pargat Singh has died during the pendency of Criminal Appeal, as such Criminal Appeal in respect of accused/respondent Pargat Singh stand abated. Therefore, the present Criminal Appeal is to be adjudicated only with respect to accused/respondent, Baljeet Kumar. 2. The present Criminal Appeal has come up for adjudication after the grant of leave to appeal has been granted under Section 378 (3) of the Code of criminal Procedure in reference to the judgment dated 25.6.1999 passed by the Learned Sessions Judge, Una, H.P. in case No. 12/99 under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short called as the NDPS Act) acquitting the alleged accused/respondent. 3. The prosecution case, in brief, is that on 12.11.1998, an information was received that some persons were carrying contraband goods, therefore, Sh. Shakti Chand Patial, Excise & Taxation Officer, started checking vehicles at 1.30 in the night at Behdala and checked HRTC bus No. HP-20-0697, coming from Delhi and going to Baijnath and three bags were found near the first window and the two persons sitting nearby were interrogated, who disclosed their names as Pargat Singh and Baljit Kumar. Both of them tried to run away from the bus and on suspicion, they were apprehended. At that time Sh. Satish Walia, ASI, who was present in connection with patrolling with constable Vinod Kumar and Sukhvinder Singh, were also associated and accused persons were asked whether they agree to be searched by police officials present on the spot, or by a gazetted officer or a Magistrate and on the consent of the accused, he was searched by ASI. Personal search as well search of the bags were conducted and 52 Kgs. 100 gms. Poppy husk was recovered from accused Pargat Singh and 11 K.G. poppy husk was recovered from accused Baljeet. After recovery of poppy husk, samples were 2 taken out and samples and remaining case property was sealed separately and the same was produced before the SHO, who resealed the same. The samples were sent to chemical examiner and on chemical examination the contents of the samples were found to be of poppy husk. On investigation, both the accused were charged for the offence punishable under Section 15 of the NDPS Act. 4. In order to prove its case, prosecution has examined as many as 11 witnesses. Whereas accused through his statement under Section 313 Cr.P.C. denied he prosecution case. 5. After going through the record, we have noticed that out of prosecution witnesses, PW-3 Sh. Baldev Singh was associated as independent witness, who at the relevant time was working as conductor of the concerned bus, who, however, has not supported the prosecution case. For the reasons best known to the prosecution and in the facts and circumstances of the case, no other independent witness was associated from the place where independent witnesses could have been associated. There is nothing on record to show that the raiding party endeavored to associate any independent prosecution witness. It has also not brought on record that despite there being endeavor, no independent witness was available or no body was ready to associate himself in the search and seizure and to support the prosecution case. The personal search as well as the search of the bags of the accused was being made in presence of PW-1, Sh. Shakti Chand and PW-2 Sh. Siri Chand. However, they have no where indicated that any specific notice was given to the accused/respondents apprising them of their legal right of being searched by police officials or by a Gazetted Officer or a Magistrate. 3 Scrutiny of Ex. PB, indicates that Incharge of raiding party, namely, ASI Satish Kumar, has given notice to the accused persons that personal search and bags of the accused are to be searched and ultimately search was made and recovery was alleged to have been made. In our considered opinion, if bags being carried out by the accused persons were only being searched, then in that condition Section 50 of the of the Act was not applicable. However, in addition to bags, personal search was also sought to be made, Section 50 of the Narcotic Drugs and Psychotropic Act was attracted. In the present case, the circumstances and material on record did not reveal that the mandatory requirement of Section 50 of the Act was made, as such mandatory lacuna makes the prosecution case doubtful. We also notice that link evidence is missing in this case, as there is no evidence that any NCB form was filled by ASI, Satish Kumar on spot and any NCB form was also deposited with the samples and the constable took the NCB form alongwith samples to the office of Chemical Examiner, so that the seals on the NCB form could be tallied with the samples. Neither ASI Satish Walia, PW-10 nor SHO Sarup Singh, PW-9 have deposed that any such form was prepared by ASI or given to the SHO with the samples. Thus, the link evidence is missing for analysis of the samples by the Chemical Examiner on which ground also the accused is entitled to the befit of doubt. 6. Another aspect is that Excise Officer, PW-1, Shakti Chand has stated that accused Pargat Singh and Baljit confessed before him that the bags belonged to them but he never recorded any statement of the accused to this effect and also not recorded the statements of confession and consequently could not be proved by 4 interrogation of other passengers that such bags from which the alleged recovery of contraband was made, were in exclusive and conscious possession of the accused/respondents. As such it can not be said that the bags, from which contraband goods were recovered, were actually in exclusive and conscious possession of Baljit Singh. 7. On the analysis of prosecution witnesses and material on record and in view of the contradictions and non compliance of mandatory provisions of Section 50 of the NDPS Act, prosecution case can not be said to be proved beyond reasonable doubts. In our considered opinion, the prosecution has failed to bring home the guilt of the accused/respondents. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit is dismissed. 8. Bail bonds furnished by the respondent/accused are hereby discharged. (Justice R.B. Misra), Judge. September 20, 2010 (Justice V.K. Sharma) (KRS) Judge 5