IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 319/1996 Date of decision: 2.12. 2009 State of H.P. …..Appellant Versus Padam Vir ……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. Ramesh Thakur Assistant Advocate General. For the respondent : Mr. Romesh Verma, Advocate. Surjit Singh, J (Oral) State has appealed against the judgment dated 1.7.1995 of learned Sessions Judge, Shimla, whereby respondent Padam Vir, who was charged with and tried for an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for allegedly possessing 400 grams of charas, has been acquitted. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - According to prosecution, on 3.12.1994, respondent Padam Vir tried to go to the official residence of the Chief Minister around 10.15 a.m. When the Police officials, on duty, including PW1 Ramesh Chand, PW2 Ishwari Nand, PW3 Inspector D.W. Negi and PW4 Hari Dass checked his bag, a polythene bag containing 400 grams of charas was recovered. Two samples each weighing 5 grams each were separated. The samples and the bulk charas were made into separate parcels. Those parcels were sealed with a seal which produced the impression of English letter “K”. A written report was prepared and sent to the Police Station, on the basis of which, case was formally registered at the Police Station vide FIR Ext. PW5/A. Case property was deposited with M.H.C. PW6 Ramesh Kumar, who sent one sample to the Chemical Examiner for examination. Chemical Examiner reported, vide report Ext. PY, that the sample contained cannabis resin to the extent of 35.40% and hence it was charas. Prosecution examined the above named witnesses to prove the search and - 3 - seizure. It also examined Head Constable PW6 Ramesh Kumar, PW7 Balbinder Singh to link the report Ext. PY with the sample taken from the recovered stuff. Learned trial court acquitted the respondent on the ground that the Police had not complied with the mandatory provisions of Sections 42 and 50 of the Narcotic Drugs and Psychotropic Substances Act. We have heard the learned Assistant Advocate General as also the learned counsel for the respondent and perused the record. View taken by the learned Sessions Judge that the accused is entitled to acquittal on account of non-compliance of the provisions of Sections 42 and 50 of the Narcotic Drugs and Psychotropic Substances Act, is perverse. Section 42 comes into play when search of some enclosed place, conveyance or building etc. is to be conducted and not where a person is intercepted at an open place and his search is conducted. In such a situation, it is Section 43 of the Narcotic Drugs and Psychotropic Substances - 4 - Act, which governs the search and seizure and not Section 42. Similarly Section 50 of the Narcotic Drugs and Psychotropic Substances Act applies when search of person of accused is to be conducted. It is well settled that the search of a bag or any other thing carried by a suspect, does not amount to personal search. However, from the perusal of the evidence, we find that it is not a fit case for interfering with the acquittal of the respondent. Case property along with the sample parcels was deposited with PW6 M.H.C. Ramesh Kumar. However, he does not state as to who had deposited the case property with him. PW3 Inspector D.W. Negi had seized the charas. It was he, who was supposed to have deposited the parcels containing bulk and samples with the FIR. Even he does not say that he had deposited the parcels containing the bulk and samples with M.H.C. Ramesh Kumar. PW6 M.H.C Ramesh Kumar stated that F.S.L. form, that is, the docket for sending the sample to the Chemical Examiner, had not been deposited along - 5 - with the samples. It has not been explained where F.S.L. form forming part of Report Ext. PY came from. One sample parcel was sent to the Chemical Examiner on 3.12.1994 through Constable Balbinder Singh, per statements of PW6 M.H.C. Ramesh Kumar and Constable Balbinder Singh. Chemical Examiner returned the same with the objection that it did not pertain to the case in hand. Thereafter sample was sent on 8.12.1994, per testimony of the above named two witnesses. However, neither of the two witnesses stated that the sample which was sent on 8.12.1994 was different from the sample that had been sent on 3.12.1994 or that it pertained to the case in hand. Rather, PW7 stated that he carried the same sample to the Chemical Laboratory on 8.12.1994. In view of the above pointed confusion in the prosecution evidence, it cannot be said with certainty if the sample which was examined by the Chemical Examiner, per report Ext. PY, was from the stuff, allegedly recovered from the respondent. - 6 - In view of the above stated position, we see no merit in the appeal. The same is therefore, dismissed. (Surjit Singh),J. December 2, 2009 (Surinder Singh),J (cm)