State of H.P. vs Karan Singh

Surjit Singh, J.—State is aggrieved by the judgment, dated 26.12.1996, of learned Additional Sessions Judge, Shimla, whereby respondent Karan Singh, who was charged with and tried for offence, u/s 20 of the Narcotic Drugs & Psychotropic Substances Act, has been acquitted.

According to the prosecution, information was received by SHO, Police Station, Theog on 28.12.1995 that a person with Charas was present at bus stand, Theog and was looking for some customer to dispose of the same. On this secret information, case was registered vide FIR Ext.PW7/A. A raiding party was formed. PW-7 Mohan Singh, SHO Police Station, Theog headed that party and went to the bus stand. Respondent was present there. He was overpowered and informed that it was intended to search his person and that in case he so desired, such could be arranged in the presence of the gazetted officer. Respondent opted for being searched in the presence of gazetted officer. Upon that, SHO Mohan Singh requested PW-8 Govind Singh, Dy.SP, to reach the spot.

When Govind Singh reached the spot, search of the person of the respondent was conducted in the presence of two independent witnesses namely, PW-4 Kashev Ram and PW-6 Bansi Lal. Upon search, 500 grams Charas was recovered. Two samples each containing 25 grams were separated. The sample packets and the recovered bulk were separately sealed with a seal that produced impression ''A''. Samples and the bulk Charas were deposited with MHC, Police Station, Theog, who sent one of the samples to Chemical Laboratory. Chemical Examiner opined that sample was of Charas. Respondent was challaned. Charge for the offence, u/s 20 of the Narcotic Drugs & Psychotropic Substances Act was framed against the respondent, to which he pleaded not guilty and claimed trial. Prosecution examined eight witnesses to bring the charge home to the respondent. Learned trial Court has acquitted the respondent, holding that there was no compliance of provision of Section 42 of the Narcotic Drugs and Psychotropic Substances Act as also Section 50 of the said Act and hence, the respondent was entitled to acquittal.

We have heard the learned Assistant Advocate General. Nobody appears for the respondent. View taken by the learned trial Court that the respondent was entitled to acquittal on account of non-compliance of provision of Section 42 is not correct. The reason is that Section 42 of the Act comes into play only when the information received pertains to the concealment of any contraband etc. in some premises or in a closed place, whereas in the present case, the information was that the respondent was present with Charas at the bus stand, which is an open place.

However, we agree with the view taken by the learned trial Court that the prosecution was bound to fail, on account of non-compliance of provision of Section 50 of the Act. Respondent was informed that he had the right to be searched in the presence of a gazetted officer. This was not proper compliance of provision of Section 50 of the Act, because according to the said provision, a suspect has the right to be searched in the presence of a gazetted officer or a Magistrate. Respondent in the present case was not informed that he had a right to be searched in the presence of a Magistrate also.

Moreover, we find from the record that though the sample, which was sent to the Chemical Examiner, per testimony of PW-3 Dhan Sukh bore seal impression ''T'', report of the Chemical Examiner Ext.PX pertains to a sample which had seal impression ''A''. Thus, the report does not stand connected with the sample of the stuff, recovered from the respondent.

For the foregoing reasons, appeal is dismissed.