IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 468 of 1997 Decided on: 24.9.2010 State of H.P. ..…Appellant Versus Gopal Dass alias Pinki ..…Respondent Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. A.G. For the respondent : Miss Kiran Dhiman, Advocate as Amicus- curiea. R.B. Misra,J. (Oral) Miss Kiran Dhiman, Advocate is requested to assist the Court as amicus-curiea and she has kindly agreed for the same. 2. The present criminal appeal has come-up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted, in reference to the impugned judgment dated 24.5.1997, passed by learned Additional Sessions Judge, Mandi, (H.P.) in Sessions Trial No. 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 26 of 1996, whereby respondent-accused has been acquitted for the offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short ‘ND&PS Act’). 3. The prosecution case in brief is that on 1.6.1996 at 9.30 A.M. SI/SHO along with ASI Ranjit Singh, HC Deva Nand and LHC Hukam Chand while checking vehicles noticed a Fiat Car coming from Mandi side going towards Jogindernagar having registration No. 29-0306 driven by young person and other person sitting in the car and when the car was stopped, the occupants of the car tried to ran away, however, they were overpowered by the police officials and on suspicion, they told their name as Gopal Dass alias Pinki and Khem Singh son of Himmat and they were giving notice whether they wanted to be searched by police official or gazetted official or a Magistrate, on which Gopal Dass gave in writing that he would give search before the Sub Divisional Magistrate, Jogindernagar on which he was taken to Sub Divisional Magistrate, Jogindernagar and search was made and contraband goods charas 4kgs and 500 grams was recovered from the bag of Gopal Dass alias Pinki and two samples of 50 grams each were taken out and put in two different packets and same were sealed and seal impression was given and same were sent to Chemical Examiner and respondent-accused was charged for the aforesaid offence and case was committed to Sessions Court. 4. In order to prove its case, the prosecution examined as many as ten witnesses, whereas the respondent-accused through his statement under Section 313 Cr.P.C. denied the prosecution case and examined one witness in defence. 3 5. The prosecution examined PW-1 Prem Bhardwaj, PW-2 Indar Dev, PW-3 Jiwan Lal, PW-4 Gian Chand, PW-5 Puran Chand, PW-6 Ved Parkash, PW-7 Som Parkash, PW-8 Hukam Chand, PW-9 Ranjit Singh, PW-10 Puran Chand and respondent-accused examined Khem Singh DW-1 in defence. 6. On scrutiny of prosecution witnesses and materials on record, we notice that on the fateful day PW-10 Puran Chand SHO before making search after the respondent-accused was apprehended be apprised him that he is to be personally searched and his bag has to be searched and the car has to be searched, however, respondent-accused did not agree to be searched by the police official and he was agreed to be searched before a gazetted officer. As such, he was taken to SDM for personal search and further search of bag and car and on search the contraband goods above indicated was recovered. However, before making search respondent-accused was not apprised that he is entitled to be searched and he has statutory right to be searched by police official, gazetted officer and Magistrate and on his declining respondent-accused was taken to the Magistrate/SDM and search was made and recovery as alleged was made from the bag of the respondent-accused and on personal search it appears that nothing was found. In these circumstances, mandatory requirement of Section 50 of ND & PS Act was not complied with which makes the prosecution case fatal. Apart from this, PW-6 Ved Parkash said to be an independent witness and witness of recovery and PW-1 Prem Bhardwaj another independent witness have not supported the prosecution case as they expected to support. 4 7. On the analysis of prosecution witnesses and materials on record, we also notice that apparent contradictions and inconsistencies have been noticed by the learned Additional Sessions Judge. Keeping in view the inconsistencies, contradictions and non-compliance of mandatory requirement of Section 50 of ND&PS Act, it could safely be said that the prosecution has not been able to bring home the guilt of the respondent-accused and failed to prove its case beyond reasonable doubt. There is no scope of interferences in the judgment of acquittal. Accordingly, the appeal being devoid of any merit is, therefore, dismissed. 8. Bail bonds, furnished by the respondent-accused, are hereby discharged. 9. Word of appreciation is placed on record for Miss Kiran Dhiman, Advocate, who has assisted this Court as amicus-curies. (R.B. Misra), Judge. September 24, 2010 (V.K. Sharma), Judge. (vs)