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2013 DIGILAW 238 (HP)

STATE OF H. P. v. Baljinder Kumar Alias Billa

2013-04-04

DHARAM CHAND CHAUDHARY, SURINDER SINGH

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JUDGMENT SURINDER SINGH, J. - 1. THE challenge in this appeal is to the acquittal of the respondent, for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short 'the Act', for allegedly keeping in his possession 350 grams of "Charas". 2. PRECISELY, the case of the prosecution is that on 2.9.2001, PW11 ASI Joga Singh was heading a police party and had put a 'Naqa' at 'Zero point' Goli. Around 5.45 a.m., the respondent, hereinafter referred as 'the accused', came from the opposite side. On seeing the police, he tried to escape. Getting suspicious of his activity, he was apprehended. PW1 Parkash Chand was associated as an independent witness. The identity of the accused was asked to which he disclosed. Thereafter, without giving him option, the said Police Officer started the search of his person and recovered 350 grams "Charas" from his "Langot" which was worn underneath his pants. (ii) Two samples of 10 grams each were separated from the recovered stuff, which were sealed separately with seal impression 'K'. Its impression was also taken on a piece of cloth. Remaining Charas was also sealed with the same seal in a separate parcel. (iii) The case property was taken into possession vide memo Ext.P1 and a 'Ruqa' was sent for the registration of the case to the Police Station Dalhousie. (iv) The accused was arrested and grounds of arrest were informed to him. Site plan was prepared. The accused and case property were produced before PW13 SHO Khub Ram. The accused was put into judicial lock-up. PW13 aforesaid resealed the case property with his own seal impression "L" and deposited the same in Police Malkhana with PW10 MHC Dalip Singh. (v) The statutory report of search and seizure was sent to the Officer superior within the stipulated time. (vi) One of the sample parcels was sent for its analysis to CTL, Kandaghat on 4.9.2001 vide R.C. No.58/2001 through PW15 C. Pritam Singh, who after its deposit obtained the receipt on the R.C. and on return, it was deposited with MHC aforesaid. (vii) On analysis, the Chemical Examiner on the basis of qualitative and quantitative tests i.e. microscopic examination and Beam's alkaline tests, opined that the exhibits contained the contents of Charas as it was having 29.56% resin. (vii) On analysis, the Chemical Examiner on the basis of qualitative and quantitative tests i.e. microscopic examination and Beam's alkaline tests, opined that the exhibits contained the contents of Charas as it was having 29.56% resin. After completing the investigation, the challan was presented in the Court for the trial of the accused. He was accordingly charge-sheeted for the offence aforesaid, to which he pleaded not guilty and claimed trial. 3. TO prove its case, prosecution examined its witnesses and the statement of accused under Section 313 of the Code of Criminal Procedure was also recorded. His case was denial simplicitor, however, no evidence in defence was led. 4. AT the end of trial, the learned trial Court jettisoned the evidence of the prosecution on the ground that the independent witness did not support the case of the prosecution and other evidence is contradictory in material particulars. The accused was acquitted, hence the present appeal by the State. We have heard the learned counsel for the parties and have gone through the evidence on record. 5. AT the very outset, we would like to say that in the instant case, there is non-compliance of Section 50 of the Act. As already stated above, the Investigating Officer entertained suspicions of some contraband in possession of the accused, thereafter without giving him an option either oral or in writing in terms of Section 50 of the Act, he proceeded to conduct his personal search and allegedly recovered the contraband. 6. BY now, it is well settled that the compliance of Section 50 of the Act is mandatory, as Section 50(1) of the Act makes it imperative for the empowered officer to "inform" the person concerned about the existence of his right under Section 50(1) of the Act, that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate. Failure to do so vitiate the conviction and sentence of an accused where the conviction has been recorded only on the basis of possession of the contraband. This principle of law was reiterated in the recent judgment by the apex Court in Suresh and Others v. State of Madhya Pradesh [ (2013) 1 SCC 550 ] that the said provision being mandatory requires strict compliance. Since there is non-compliance of Section 50 of the Act, the entire trial vitiates. This principle of law was reiterated in the recent judgment by the apex Court in Suresh and Others v. State of Madhya Pradesh [ (2013) 1 SCC 550 ] that the said provision being mandatory requires strict compliance. Since there is non-compliance of Section 50 of the Act, the entire trial vitiates. Further, we also take note that in the report of analysis the Chemical Examiner is stated to have taken two tests as aforesaid, which were positive and found 29.56% resin contents, in the stuff examined by him. To come to the conclusion that it contained the contents of Charas is not enough to show that it was Charas as defined in Section 2(iii) of the Act. The report of analysis similar to the present one came for its scrutiny before the Division Bench of this Court of which one of us i.e. Justice Surinder Singh was one of the member, in Sunil Kumar v. State and other connected matters, [Latest HLJ 2010 (HP) 207] whereby it was held that such a report is not in consonance with the definition of Charas and the Examiner in this case did not whisper even a single word as to what was the source of resin. 7. THEREFORE, for the reasons aforesaid, we do not find any force in the appeal filed by the State, as such, dismissed. 8. THE accused is discharged of his bail bonds entered upon by him at any time, during the proceedings of the case. Send down the records.