IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 437 of 2003 Decided on: 12.12.2011 State of Himachal Pradesh …Appellant. Versus Jai Bhagwan, s/o Sh. Mangat Ram, r/o village and P.O. Mathloda, Tehsil and District Panipat, Haryana. …Respondent. Criminal Appeal under Section 378 of the Code of Criminal Procedure against the judgment of acquittal, dated 24.05.2003, passed by the learned Additional Sessions Judge, Solan, H. P. in Sessions Trial No. 3-S/7 of 2002 under Section 20 of the Narcotic Drugs and Psychotropic Substances, Act. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting?1 No. For the appellant: Mr. Vivek Singh Thakur, Additional Advocate General. For the respondent: Mr. V.D. Khidtta and Mr. Sanjeev Mankotia, Advocates. Deepak Gupta, J.(Oral) This appeal by the State is directed against the judgment dated 24.05.2003, passed by the learned Additional Sessions Judge, Solan, in Sessions Trial No. 3-S/7 of 2002, whereby the learned Additional Sessions Judge acquitted the accused of 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- having committed an offence punishable under Section 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). 2. The prosecution story, in brief, is that on 24.11.2001 at about 11.30 p.m., PW-5, ASI Anant Ram, alongwith some other police officials was on checking duty at Parwanoo barrier. This patrolling party stopped bus No. HP-06-2839 belonging to the Himachal Road Transport Corporation (HRTC). The bus was going from Rampur to Delhi. PW-5 alongwith Rakesh and Hira Singh started checking the bus. It is alleged that accused Jai Bhagwan was sitting on seat No. 14 and holding a bag made of rexine. This bag bore the word 'Adidas'. The bag was checked in the presence of a passenger, PW-1, Vijay S. Nimkar, who was sitting on seat No. 8. The driver and conductor were also associated with the search. When the bag was opened, one black polythene bag was taken out. Inside this black polythene bag, there was another white bag of polythene and inside this bag, there was charas. PW-4, Constable Hira Lal was sent to bring scales and thereafter, the charas was weighed. On weighment, it was found to weigh 3 kg 100 gms. Two samples of 50 grams each were drawn. Both the samples as well as the remaining bulk charas were packed in three separate parcels of cloth and all the parcels were sealed with seal impression “A”. The specimen seal impression was taken on a separate piece of cloth, Ex. PW-5/A. The case property was taken in possession vide memo Ex. PW-1/A. Rukka, Ex. PW-5/B was prepared and sent to the Police Station through Constable Tarsem Singh. Thereafter, PW-6, -: 3 :- Brij Mohan Singh, came to the spot and other documents were prepared. After Brij Mohan Singh arrived at the spot, PW-5 handed over the case property and other documents to him vide inventory list, Ex. PW-5/C. PW-6 recorded the statements of the witnesses and completed the other codal formalities at the spot. He, thereafter, deposited the case property with PW-8, SHO Pramod Shukla, who re-sealed the same with seal impression “S” and then kept it in safe custody in Malkhana. One sample was sent for chemical examination to CTL Kandaghat through Lady Constable Mamta Mohil, PW-3. On analysis of the sample, the Chemical Examiner opined that the sample was of charas vide his report, Ex. PW-8/D. On the basis of this material, the accused was charged for having committed an offence under Section 20 of the NDPS Act. 3. The learned trial Court acquitted the accused on two grounds: firstly that the provisions of Section 50 of the NDPS Act had not been complied with and secondly that there was violation of Section 42 of the Act. In our considered opinion, neither Section 42 nor Section 50 of the Act are applicable in the case in hand. Section 42 of the Act deals with a search conducted on the basis of prior information. There is no material on record to show that this was a case of prior information. No doubt, the conductor of the bus, Ramesh Chand, who was examined as DW-1, has in his statement stated that the police officials told him that they suspected that some contraband was carried out in the bus, but when we examine the statements of all the witnesses together, it is apparent that the police officials were present at the barrier on -: 4 :- routine patrolling duty. Even otherwise, the bus, being a public conveyance, provisions of Section 42 of the Act, would not be applicable. 4. As far as Section 50 of the Act is concerned, the same is also not applicable, since the recovery of the contraband was made from a bag. The Apex Court in State of H.P. versus Pawan Kumar, Latest HLJ 2004 (SC) 1247, has clearly laid down that the provisions of Section 50 of the Act are applicable only in case of personal search and not in case of recovery on search of a bag. 5. Therefore, in view of the aforesaid facts, we have gone through the evidence in detail ourselves. The prosecution story has already been narrated hereinabove and PW-5, the Investigating Officer and PW-6, the second Investigating Officer, have both supported the prosecution version. What emerges from their version is that the bus was stopped at about 11.30 p.m., checking went on for about an hour or two and, thereafter, PW-6 arrived at the spot at 2.00 a.m. in the morning. 6. The prosecution in support of its case has produced PW-1, Vijay S. Nimkar, who was allegedly sitting on seat No. 8 of the bus and in whose presence, the bag was searched. He has supported the prosecution story and according to him, the bag was kept on his legs by the accused. According to him, by about 1.30 a.m., entire proceedings had finished and, thereafter, he went in the same bus to Delhi. 7. One crucial aspect while appreciating the statement of this witness is that admittedly he was sitting on seat No. 8 of the -: 5 :- bus, which is ahead of seat No. 14 and therefore, normally he would not know what a passenger at seat No. 14 was carrying and whether the bag was kept by the passenger was on the legs, or on the floor of the bus or in the aisle of the bus. We are saying this because the accused has not denied the recovery of the bag. His case is that the bag did not belong to him and that the bag was an unclaimed bag lying in the bus and he had nothing to do with the same. 8. As far as the conductor of the bus is concerned, the prosecution chose not to examine him and he was given up as being unnecessary. He appeared as a defence witness and according to him, the bag was lying in the aisle of the bus and it was an unclaimed bag and it was not recovered from the conscious possession of the accused. 9. The driver of the bus was not examined. PW-6, Brij Mohan, has clearly stated that he reached the barrier at about 2.00 a.m. Thereafter, he prepared the rough sketch plan etc. and recorded the statements of the witnesses. PW-4, Constable Hira Lal, who was admittedly a member of the patrolling party, has clearly stated in his statement that the bus had left for Delhi by the time PW-6 arrived at the spot. He has further stated that by the time PW-6 arrived, other than the police officials and one civilian, namely Gurmeet Singh, no other person was present at the spot. If that be so, then the prosecution has failed to give any explanation how PW-6 recorded the statement of PW-1 on the same night at Parwanoo under Section 161 CrPC. This obviously shows that -: 6 :- some documents have been created after the bus had left. This casts a doubt on the prosecution story. 10. We, therefore, on totally different grounds uphold the acquittal of the accused. The appeal is accordingly dismissed. Bail bonds discharged. (Deepak Gupta) Judge (V.K. Ahuja) Judge December 12, 2011 (rajni)