IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 418 of 2000 Decided on: 15.9.2010 State of H.P. ..…Appellant Versus Kishan Sathi. ..…Respondent Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 For the appellant : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. For the respondent : Mr. Rajesh Verma, Advocate, as Amicus- Curiea. R.B. Misra,J. (Oral) The present criminal appeal has come-up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted, in reference to the impugned judgment dated 1.4.2000, passed by learned Special Judge, Kullu (H.P.), in Sessions Trial No. 17/99, acquitting the respondent-accused for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short “ND&PS Act”). 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 2. Prosecution case is that on 16.1.1999 when H.C. Yog Raj along with other police officials on receiving secret information arranged ‘Nakabandi’ and associated Kusum Chand and Daulat Ram, independent witnesses at 6.30 P.M., one person namely Kishan Sathi was apprehended and search was made on obtaining his consent that whether he wants to be searched by the police present or wants to be searched before the gazetted officer or Magistrate. After search, one envelope was recovered in the jacket of respondent-accused from which 700 grams Charas was found and two samples were taken and were put in different seals and remaining quantity of Charas was also sealed. NCB form was filled up, Ruka was sent and respondent-accused was arrested and samples were sent for Chemical examination. Respondent-accused was charged for the aforesaid offence and case was committed to the Sessions Court. 3. In order to prove its case, the prosecution examined eight witnesses, whereas the accused through his statement under Section 313 Cr.P.C. denied the prosecution case. 4. On analysis of the prosecution witnesses and materials on record, we notice that personal search of the respondent-accused was made, however, before personal search he was only asked whether he is agreeing for search by the police party or he is to be searched by a Magistrate or gazetted Officer and on agreeing by respondent-accused, personal search was made, whereas, before making search respondent-accused was to be made aware that he is entitled to be personally searched and as such, he has right to indicate as to whether he 3 wants to be searched by police officer or Magistrate or a gazetted officer. Only his agreeing that he was to be searched by the police official, the mandatory requirement of Section 50 of the ND&PS Act is not complied with. Besides this, PW-4 Daulat Ram and PW-5 Kusum Chand said to be independent witnesses associated by the police official on relevant date i.e. on 16.1.1999 qua the apprehending of the respondent-accused and making search, however, these two independent witnesses namely PW-4 and PW-5 have not supported the search, seizure or recovery and have been declared hostile. So much so, PW-4 and PW-5 have stated that Charas was already lying on the table in police station and their statements were recorded under Section 161 Cr.P.C. In cross-examination also, they have not supported the prosecution case. 5. The prosecution case is said to be supported by PW- 6 Yog Raj and PW-7 Dharm Chand. PW-6 Yog Raj being I.O. has endeavoured to support the prosecution case by saying that 700 grams of Charas was recovered from two polythene packets recovered from the jacket of the respondent-accused. Similarly, PW-7 Dharm Chand has also supported the case of the prosecution. 6. PW-8 Inspector Rulia Ram has stated that on receipt of Ruka Ext.PW6/B, he recorded FIR Ext.PW6/C and accordingly case was registered. 7. On the scrutiny of oral and documentary evidence, no doubt, police official witnesses have endeavoured to prove the prosecution case by saying that on obtaining the consent of respondent-accused search was made. However, PW-4 and 4 PW-5 said to be independent witnesses associated by the police official have not at all supported the prosecution case. According to these witnesses, respondent-accused disclosed his name in the police station where his search was taken but nothing was recovered from the respondent-accused as Charas was already lying on the table in the Police Station. In these circumstances, suspicion is also created in the prosecution case, more so, for non-compliance of mandatory provision of Section 50 of the ND&PS Act, the prosecution case becomes fatal. 8. In the facts and circumstances, learned Special Judge has rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt. Accordingly, the appeal being devoid of any merit is, therefore, dismissed. 9. Bail bonds, furnished by the respondent-accused, are hereby discharged. (R.B. Misra), Judge. September 15, 2010 (V.K. Sharma), Judge. (vs)