IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.196 of 1996. Dated of Decision: November 9, 2009. State of H.P. ……… Appellant. Versus Shiva Nand and another. ..…. Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?. For the Appellant : Mr. P.M. Negi, Dy. Advocate General. For the Respondents : Mr. H.K.S. Thakur, Advocate Surjit Singh, J (oral): State has appealed against the judgment dated 10th January, 1995 of learned Sessions Judge, Shimla, whereby respondents Shiva Nand and Geeta Ram, who were charged with and tried for offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for allegedly possessing 7.700 Kgs. Charas, have been acquitted. Case of the prosecution may be summed up thus. On 18th January, 1993, ASI Ashok Kumar of Police Station Boileauganj received a secret information around 7.30 p.m. that two persons with Charas were present near Tunnel No.103, Shimla and if they were nabbed, Charas could be recovered from them. ASI Ashok Kumar (PW8) reduced the information into writing in the Roznamcha maintained at the Police Station and went to Deputy Superintendent Whether reporters of local papers may be allowed to see the judgment? 2 of Police Chander Shekhar (PW7). Both associated with them two independent witnesses, namely PW1 Ved Parkash and PW2 Baldev Sharma and reached at Tunnel No.103 at 8.15 p.m. Fifteen minutes later, the respondents were seen coming from Shimla side and proceeding towards Boileauganj side. On seeing the police, they tried to escape. They were overpowered. Respondent Shiva Nand was carrying a bag. Respondents were told that it is intended to search their person and if they so desired, search could be arranged in the presence of a Gazetted Officer or a Magistrate. Respondents opted to be searched by the Dy.S.P. Chander Shekhar (PW7). Thereafter the search of the bag was conducted, which Shiva Nand was carrying. It was found containing Charas, which weighed 7.700 kgs. Two samples weighing 25 grams each were separated and made into two parcels, which were sealed with seal that produced the impression of letter ‘A’ of English alphabet. Rest of the recovered Charas was made into another parcel and that parcel was also sealed with the same seal. Case property was deposited with PW5 MHC Krishan Chand, who sent one of the two samples to the Chemical Examiner, on the next following day through C. Brij Lal (PW4). Chemical Examiner vide report Ex.PW3/A reported that the contents of the sample parcel were of Charas. Prosecution examined two independent witnesses, PW7 Chander Shekhar, Dy.S.P. and PW8 ASI AShok Kumar, to prove the search and seizure. To link the report Ext.PW3/A with the stuff, allegedly recovered from the respondent, prosecution examined PW5 HC Krishan Chand and Constable Brij Lal (PW4). 3 Learned trial court acquitted the respondents holding that the mandatory provisions of Sections 42 and 50 of the Narcotic Drugs and Psychotropic Substances Act had not been complied with and also that there were some contradictions in the statements of the witnesses, rendering the story of search and seizure doubtful. We have heard the learned Deputy Advocate General as also the learned counsel for the respondent and gone through the record. Prosecution story is rendered doubtful by the very fact that the information was received by PW8 ASI Ashok Kumar at 7.30 p.m. at the Police Station that two persons with Charas were present near Tunnel No.103 and when he reached the spot 45 minutes later, the two respondents were still there. Had the respondents been present at Tunnel No.103 with Charas at 7.30 p.m., per information given to PW8 ASI Ashok Kumar, per his testimony, they could not have been found at Tunnel No.103, 45 minutes later, especially when they had nothing to do at Tunnel No.103, but were going towards Boileauganj from Shimla side. The story cannot be believed, because the respondents could not have been waiting for the police, for 45 minutes, to reach and to apprehend them. It has been fairly conceded on behalf of the respondents that neither Section 50 nor Section 42 of the Narcotic Drugs and Psychotropic Substances Act was applicable to the present case, in view of the fact that the recovery was effected at a public place and also not from the personal search of either of the two respondents. Besides the fact that the story of the prosecution is improbable, we find that report of the Chemical Examiner Ex.PW3/A 4 does not stand connected with the stuff recovered from the respondents. According to the testimony of all the prosecution witnesses, who were present at the time of search and seizure, only two samples had been taken out from the recovered stuff. One of the samples had been sent to the Chemical Examiner, per testimony of PW5 HC Krishan Chand and PW4 Constable Brij Lal. Therefore, only one sample parcel was supposed to have remained with the police, for being produced in the court during the course of the trial. However, per testimony of PW1 Ved Parkash and PW8 ASI Ashok Kumar, both the sample parcels were produced in the trial court. Production of both the sample parcels in the trial court suggests that no sample parcel was sent to the Chemical Examiner. Also, we find from the testimony of PW5 HC Krishan Chand and PW4 Constable Brij Lal that they have not given the description of the sample, which was sent to the Chemical Examiner. PW4 Constable Brij Lal simply stated that he carried one sample on 19.1.1993 to the Chemical Laboratory without even saying that the sample pertained to the case in hand, leave alone testifying about the seal impressions, which appeared on the parcels or other particulars of the parcels. In view of the above stated position, we do not find any good ground for interfering with the judgment of acquittal. Hence, the appeal is dismissed. (Surjit Singh) Judge November 9, 2009. (Surinder Singh) (Pds) Judge.