State of H.P. vs Ram Prashad

R.B. Misra, J.—Mr. Vikrant Thakur, Advocate is requested to assist the Court as Amicus-curiae and he has agreed for the same.

The present criminal appeal has come-up for consideration after leave to appeal u/s 378(3) of the Code of Criminal Procedure has been granted, in reference to the impugned judgment dated 30.7.1998, passed by learned Sessions Judge, Kullu and Lahaul Spiti Districts at Kullu, H.P., in Sessions Trial No. 5/98, whereby respondent-accused has been acquitted for the offence, u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "ND&PS Act").

The prosecution case is that on 19.10.1997 at 5.15 P.M., Jagdish Chand, SI/SHO, Police Station, Banjar received telephonic message that one person wearing Khakhi jacket was going towards Khunan carrying charas, as such, report was entered in Rojnamcha and wireless message was sent to S.P. Kullu and S.H.O. recorded the information. Then Jagdish Chand S.H.O., along with Lal Singh constable and Devi Ram constable, moved towards Khunan and associated Mani Ram and Chuni Lal, independent witnesses, and formed a raiding party and apprehended a person and asked his name and apprised him that whether he wanted to give search to the police or to a gazetted officer or a Magistrate. On his agreeing to give search to the police, personal search was conducted and it was found that respondent-accused had wrapped his waist with white colour muffler in which charas, in the shape of sticks, was kept in polythene envelope which was taken out and on weighing 1 kg. 500 grams of charas was recovered from the personal search from which two samples of 25 grams each were taken out and the samples and the remaining charas was sealed with seal ''T'' and samples were sent for chemical examiner and after investigation, respondent-accused was charged for offence, u/s 20 of the ND&PS Act and case was committed to the Sessions Court.

In order to prove its case, the prosecution examined ten witnesses, whereas, the accused, through his statement u/s 313 Cr.P.C., denied the prosecution case.

On scrutiny of prosecution witnesses and materials on record, we find that two independent witnesses PW-1 Mani Ram and PW-2 Chuni Lal have deposed that respondent-accused was told by the S.H.O. that he had suspicion that respondent-accused was carrying charas and whether he wanted to be searched by police or a Magistrate and both independent witnesses have categorically stated that only option was given whether he wanted to be searched by police or by Magistrate and nothing was indicated that he has a legal right of being searched before a Magistrate or gazetted officer or police and before independent witnesses the respondent-accused was not apprised that he has a large right and entitled to be searched and only two option were given whether he wanted to be searched by police or Magistrate and nothing was mentioned about gazetted officer. However, personal search was made without complying with the mandatory requirement of Section 50 of ND&PS Act. Non-compliance of mandatory provisions of Section 50 of the ND&PS Act makes the prosecution case fatal. The two independent witnesses have not supported the prosecution case to the extent it was suspected.

In these circumstances, prosecution cannot be said to have proved its case beyond reasonable doubt and on the basis of materials on record and in view of appraisal of prosecution witnesses, we also notice that prosecution has failed to bring home the guilt of the accused. Accordingly, the appeal, being devoid of any merit, is dismissed.

Bail bonds, furnished by the respondent-accused, are hereby discharged.

Word of appreciation is placed on record for Mr. Vikrant Thakur, Advocate, who has assisted this Court as Amicus-curiae.