IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.A. No. 18 of 1995. Judgment reserved on: 25.9.2008 Date of Decision: 13th Oct.2008. State of H.P. …Appellant Versus. Sagira .. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for Reporting? No For the Appellant(s): Mr. R.M.Bisht, Dy.A.G. For the Respondent(s): Mr. Bhupinder Ahuja vice Mr.Anup Chitkara Advocate. __________________________________________________________________ Deepak Gupta, J. This appeal is directed against the judgment of the learned Sessions Judge, Nahan acquitting the accused of having committed an offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act ( hereinafter referred to as the Act). The prosecution case, in brief, is that on 24.4.1993 at about 5.30 p.m. a patrolling party headed by A.S.I. Chander Singh was on patrol duty near Bangala Colony in village Matralion. The accused allegedly was found crossing the Yamuna river from U.P. side with a bag on his right shoulder. He was stopped by the police party and his personal search was made by ASI Chander Singh in the presence of - 2 - police officials and two private individuals Kishan Singh and Sajjan Singh. On such search 4 ½ k.g. Poppy husk wrapped in a cotton bag was recovered from him. Out of this, 100 gms was taken out as a sample and the remaining poppy husk were packed in different parcels and sealed with seal impression ‘B’. The case property was produced before Additional SHO, Dhanbir Singh who resealed the same with seal impression ‘D’. Thereafter, the sample was sent to the Chemical Examiner and received back with his report Ext.PW-8/E that the exhibit contains contents of Chura Post i.e. Poppy straw. There are many infirmities in the prosecution case. Though search is alleged to have taken place in the presence of Kishan Singh and Sajjan Singh, their signatures do not find place on the memo whereby the accused was allegedly informed of his right to get himself searched by the Executive Magistrate or Gazetted Officer. In fact, a perusal of this memo shows that the ASI had prior information that the accused is carrying poppy straw in his bag. In case, it was the case of prior information then the procedure prescribed should have been followed. Even if the case is taken to be a case of chance recovery there is no explanation as to why the signatures of the independent witnesses were not taken on the memo informing the accused about his right. In fact this memo is totally in contradiction to the provisions of the Act. It only informs the accused that he has a right to be searched in the presence of Gazetted Officer. It does not inform him of his right to be searched before a Magistrate. - 3 - The independent witnesses have denied that any search was conducted in their presence. The prosecution has also failed to bring on record any cogent evidence to link the sample with the report of the Chemical analysis. The case of the prosecution is that on 24.4.1993 the poppy straw was recovered from the accused. It is also on record that on 24.4.1993 this sample was deposited in the Malkhana. There is no explanation as to why the sample was not sent for analysis from 24.4.1993 to 2.6.1993. Not only there is no explanation of delay in sending the sample but nothing has been proved on record to show that the sample remained in the same condition in the Malkhana and was not tampered with. According to the prosecution, Head Constable Chaman Lal managed to get one scale to weigh the poppy straw. However, Chaman Lal has not been examined and no evidence has been led to prove from where the scales were obtained. The independent witnesses have stated that no search was conducted in their presence and the police asked them to sign the documents and they signed the same. Though they have been cross examined by the prosecution nothing material has been extracted from them. The learned trial Court after considering the entire evidence and keeping in view many inconsistencies in the prosecution case has rightly acquitted the accused. The presence of the witnesses is extremely doubtful because in case they had been present their signatures would have been obtained on the memo informing the accused of his search. The prosecution also failed to prove on record - 4 - that the report of the lodging of FIR was given to the next superior authority in terms of Sections 52 and 57 of the Act. Keeping in view the many inconsistencies in the case, we find no reason to interfere in the judgment of the trial Court and the appeal is accordingly dismissed. Bail bonds furnished by the accused are discharged. ( Deepak Gupta ), J. October 13,2008. ( V.K. Ahuja ),J. PV