1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 212 of 1994 Date of Decision: 03.04.2008 ____________________________________________________________ State of H.P. ……..Appellant. Versus Kailash.Chand alias Kala ……..Respondent Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No For the appellant : Mr. P.M.Negi, Additional Advocate General For respondent : Mr. N. K. Thakur, Advocate. ______________________________________________________________ Surjit Singh, J. (oral) State is aggrieved by the judgment of trial Court whereby the respondent Kailash Chand, who was charged with and tried for the offence of possessing Charas, punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, has been acquitted. The case of the prosecution is that on 15-5-1993 at a place called Tunnuhatti, at 5.00 A.M, the respondent was seen coming on foot from Nainikhud side by PW10 A.S.I. Pritam Singh and some police officials accompanying him. On seeing the police party, the respondent tried to turn back and run away. He was over-powered. He was carrying a bag. On search, 1500 grams Charas was found in the bag. Two samples each weighing ten gram were separated. One sample was sent to the Chemical Examiner who found that the sample contained resin of cystolithic hairs plant to the extent of 32.25%. The respondent was allegedly apprehended and search of his bag was conducted in the presence of Yugal Kishore Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 (PW5) and Vijay Kumar (PW6). Vijay Kumar (PW6) was declared hostile during the course of trial. Yugal Kishore (PW5) testified that he was called to the Police Post where charas was already lying on a table and he was told that it had been recovered from the respondent. Prosecution did not cross-examine the witness despite his having not supported the prosecution version that the respondent was nabbed and searched on the spot in the presence of this witness and charas was recovered from his bag. ASI Pritam Singh (PW10) stuck to the original version of the prosecution that search of the accused was conducted on the spot in the presence of Yugal Kishore (PW5) and Vijay Kumar (PW6). Other police officials accompanying Pritam Singh, A.S.I. were not examined. Now there are two versions given by the witnesses of the prosecution itself and the prosecution relies upon the testimony of the witnesses of both these contradictory versions. According to PW10 Pritam Singh, the respondent was apprehended when he was sighted coming from Nainikhud side and his bag was searched on the spot. He says that two independent witnesses Yugal Kishore (PW5) and Vijay Kumar (PW6) were with him when the search was conducted. However, PW5 Yugal Kishore says that no search was conducted on the spot and that he was called to the Police Post where accused was already present and some charas was lying on a table and he was told that the same had been recovered from the respondent. He also testified that he was required to sign the papers which were already lying written when he reached the Police Post. The prosecution does not dispute the testimony of Yugal Kishore (PW5) because as already noticed, he was not cross-examined with the leave of the Court. In these circumstances, we see no reason to interfere with the judgment of the trial Court, even though we do not agree with the reasoning of the trial Court that the accused deserves to be acquitted on the ground of non-compliance of the provisions of Section 50 3 and 52 of the Narcotic Drugs and Psychotropic Substances Act because the provision of Section 50 is not attracted to the facts of the case in hand and Section 52 is not mandatory. Hence the appeal is dismissed. (Surjit Singh) Judge. April 3, 2008 (Surinder Singh) (bm) Judge.