1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 726 of 2000 Decided on December 1, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Kapil Dev ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. ¹Whether approved for reporting? For the appellant: Mr.R.K. Sharma,Senior Additional Advocate General, with Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Sanjay Jaswal, vice counsel. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 21.6.2000, passed by Learned Special Judge, Sessions Division Solan, at Solan, H.P., in Sessions Trial No.1-S/7 of 2000 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), acquitting the alleged respondent-accused. 2. The prosecution case is that on 21.10.1999, ASI Virender Kumar (PW.11) received an information that the accused/respondent is in possession of contraband goods. Accordingly, report was recorded in writing in Daily Register and PW.11 proceeded to the spot and associated two independent witnesses, namely, Iqbal Malik (PW.1) and Naresh Kumar (PW.2). 2 PW.11 ASI Virender Kumar constituted a raiding party and apprehended the accused/respondent and on personal search recovered 280 grams of contraband goods. Two samples of 10 grams each were extracted separately from it for chemical analysis. Thereafter, the whole of the seized charas and both the samples were wrapped, packeted and sealed on spot with seal impression 'A'. 3. After investigation, respondent-accused charged for the offence under Section 20 of the 'NDPS Act'. In order to prove its case, the prosecution has examined as many as 12 prosecution witnesses, whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case and shown his innocence. 4. Prosecution examined PW.1 Iqbal Malik, PW2.2 Naresh Kumar, PW.3 Rajesh Kumar, PW.4 SHO K.D. Khan, PW.5 MHC Mast Ram, PW.6 H.C. Gian Chand, PW.7 C. Ajay Kumar, PW.8 SHO Achhar Pal, PW.9 H.C. Babu Ram, PW.10 ASP Sunder Lal, PW.11 ASI Virender Kumar and PW.12 H.C. Yoginder Singh. 5. On scrutiny of the prosecution witnesses and materials on record, we notice that PW.11 ASI Virender Kumar has stated that he associated PW.1 and PW.2 as independent witnesses, who have witnessed the said search, seizure and recovery of the contraband. As per testimony of PW.11, accused/respondent was informed of his right to be searched by him or in presence of any gazetted officer or the Magistrate and accused/respondent volunteered to be searched in presence of a gazetted officer. As such, personal search of the 3 accused/respondent was made by PW.10 ASP Sunder Lal in presence of PW.1 and PW.2. In view of the testimony of PW.10 ASP Sunder Lal, the accused/respondent opted to be searched by him vide his consent Ex.PA. However, on analysis of the testimonies of PW.1 and PW.2, it appears that the accused/respondent was not categorically informed of his valuable right as to the option to be searched either by the Authorized officer or in presence of a gazetted officer or the Magistrate, therefore, compliance of Section 50(1) of the 'NDPS Act' has not made. As per testimony of PW.1 and PW.2, nothing is emanating that the accused was informed by PW.10 ASP Sunder Lal and PW.11 ASI Virender Kumar, about the exercise of his said right under Section 50(1) of the 'NDPS Act'. Merely giving acceptance to be searched by a gazetted officer is not the compliance of mandatory requirement of Section 50 of the 'NDPS Act'. The prosecution had to make personal search by PW.11 ASI Virender Kumar in presence of two independent witnesses PW.1 and PW.2, but prosecution cannot prove that the personal search of the accused/respondent was made in compliance to the mandatory requirement of Section 50 of the 'NDPS Act'. PW.1 and PW.2 have not supported the prosecution case, who have witnessed the search, seizure and recovery of the contraband goods. In these facts and circumstances, testimonies of PW.3 Constable Rajesh Kumar, PW.4 SHO K.D. Khan, PW.5 MHC Mast Ram, PW.6 H.C. Gian Chand, PW.9 Constable Ajay Kumar, PW.8 another SHO Achhar Pal, PW.9 H.C. Babu Ram and PW.12 H.C. Yoginder Singh being official 4 witnesses cannot be helpful to prove the prosecution case. 6. On analysis of the prosecution witnesses and materials on record, the learned Special Judge has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings given by learned Special Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 7. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge December 1, 2010 (Sanjay Karol) (Purohit) Judge