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Himachal Pradesh High Court · body

2019 DIGILAW 1729 (HP)

State of H. P v. Mahi Pal

2019-11-16

ANOOP CHITKARA, TARLOK SINGH CHAUHAN

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JUDGMENT : Anoop Chitkara, J. 1. Challenging the acquittal of respondent/accused, for possessing 5 Kgs and 200 grams of charas, the State has come up before this Court by filing the present appeal. 2. The gist of the facts apposite to adjudicate the present appeal traces its origin to FIR No.160/2007, dated 11.8.2007 for commission of offence punishable under Section 20(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (after now called as ‘NDPS Act’) registered in the file of Police Station, Parwanoo, District Solan, HP. 3. As per general diary entry No.37(A) (Ext.PW-5/D), police party comprising SI Jeet Ram (not examined), Head Constable Nand Lal (PW-4), and Constable Vijay Kumar (PW-3), proceeded to erect a check post at Sector-6, Parwanoo, District Solan, HP, on 17.11.2007 at 10.45 p.m. After that, as per general diary No.2(A) (Ext.PW-5/E), SHO of the Police Station, Parwanoo, Shri K.D. Khan (PW-9) also joined the police party, accompanied by Head Constable Desh Raj (not examined), and he had reached the spot by an automobile of the Police Department. 4. When the police party headed by SHO Shri K.D. Khan (PW-9) reached the spot, then the police party, which was already present there, had erected on Shimla-Kalka National Highway and had stopped a bus bearing No.CH-01-G-8888, which was coming from Shimla side. Chandigarh Transport Undertaking was running this bus. From the front door of the bus, Sub Inspector Jeet Ram entered into the bus, and from the rear door, head constable Nand Lal (PW-4) accompanied by Constable Vijay Kumar (PW-3) entered in the bus from its front door. They started searching the passengers and their luggage. One young man sitting on seat No.35 was carrying a bag on his lap. On checking the bag, the Police found two shirts, one lower and one shawl in it. Below these clothes, there was a polythene bag, and when the Police checked this polythene bag, they noticed charas in it, and charas was in the shapes of thick and thin wicks. On this, the SHO associated Shri Mehar Singh (PW-2) conductor of the bus and Mahesh Kumar (PW-1) driver of the bus as witnesses. The Police also associated the passenger sitting on seat No.36, whose name was Shri Jamshed Mohammad (not examined). On this, the SHO associated Shri Mehar Singh (PW-2) conductor of the bus and Mahesh Kumar (PW-1) driver of the bus as witnesses. The Police also associated the passenger sitting on seat No.36, whose name was Shri Jamshed Mohammad (not examined). In the presence of these witnesses, the Police inquired about the name and identity of the person sitting on seat No.35, and he disclosed his name as Mahi Pal, son of Shri Ranjot Singh, resident of village Pitari, Tehsil Prola, District Dehradun, Uttrakhand. He could not produce any permit or license for carrying the said charas. The Police prepared the memo of identification of charas as well as the spot map at the spot. 5. After that, because it was a late night, and the street light was not working; therefore, the Police directed the driver to take the bus to the Police Station. On reaching the Police Station, Constable Vijay Kumar (PW- 3) was sent to bring scale and weights. Charas was taken out from the polythene bag and weighed. On measurement, the charas was found to be 5 Kgs and 200 grams. The SHO took out two samples of hundred grams each for taking the chemical examination. The remaining charas was put in a parcel and sealed with six seals impression “H.” The samples of hundred grams each were also kept in cloth parcels and sealed with six parcels of impression “H.” After usage, the seal was handed over to Shri Mehar Singh (PW-2). The Police also filled in NCB forms. After that, the Police placed back the sealed parcel of charas along with clothes in the same bag. 6. On the same day, i.e., 18.11.2007, SHO Shri K.D. Khan (PW-9) deposited the case property containing bulk charas, both the samples, NCB form and other relevant documents with Shri Prem Singh, MHC (PW-5), who made an entry to this effect in the register No.19 at Sr. No.469, vide entry Ext.PW-5/B. 7. On 20.11.2007, vide R.C. No.105/07 (Ext.PW5-A), MHC Shri Prem Singh, (PW-5), sent one sample of charas, along with NCB form and a copy of FIR to Forensic Science Laboratory, Junga for chemical analysis, through Constable HHC Kuber Singh (PW-6). 8. To comply with the provisions of Section 57 of the NDPS Act, the SHO Shri K.D. Khan (PW-9) prepared the special report (Ext.PW-6/A) and sent the same to S.P. Solan, HP, through PW-6 Shri Kuber Singh. 8. To comply with the provisions of Section 57 of the NDPS Act, the SHO Shri K.D. Khan (PW-9) prepared the special report (Ext.PW-6/A) and sent the same to S.P. Solan, HP, through PW-6 Shri Kuber Singh. As per the testimony of PW-8, Shri Prem Lal, posted as Reader to S.P., Solan at that time, the S.P. had received the Special Report on 19.11.2007 and he made an endorsement to the said effect. 9. The report (Ext.PW-7/A), of Forensic Science Laboratory, declared the contraband as Charas. After that, the SHO filed the charge sheet under Section 173(2) of CrPC in the Court of Special Judge, Solan. 10. The accused remained unrepresented, and consequently, Ld. Sessions Judge provided to him the services of a counsel at the State expenses. 11. As per narration in the order dated 22.4.2008, learned Special Judge found prima facie case against the accused and framed charges against him under Section 20(C) of NDPS for possessing 5 Kgs and 200 grams of charas. The accused did not plead guilty and claimed trial. 12. After recording testimonies of prosecution witnesses, accused in his statement under Section 313, CrPC did not dispute his presence in the bus. However, his plea is that he was sleeping on some seat, and then the Police woke him up and planted the bag upon him. He showed his total ignorance about the recovery of the bag and denied that the bag belonged to him. He further stated that he was going to Chandigarh to seek employment, and the Police gave him beatings and took his signatures on the blank papers. However, the accused did not examine any witness in his defence. 13. Vide judgment dated 9.7.2008, passed in Session Trial No.1-S/7 of 2008, learned Sessions Judge (Special Judge), Solan, acquitted the accused on all counts, by extending the benefit of doubt to him. It is against this acquittal that the State has come up before this Court by filing the present Criminal Appeal. 14. We have heard Shri Vinod Thakur, learned Additional Advocate General with Mr. Bhupender Thakur, learned Deputy Advocate General for the State and Shri Y.P.S. Dhaulta, legal aid counsel for the accused-respondent. We have also gone through the entire record. DISCUSSIONS AND REASONING : EVIDENCE ON POSSESSION: 15. 14. We have heard Shri Vinod Thakur, learned Additional Advocate General with Mr. Bhupender Thakur, learned Deputy Advocate General for the State and Shri Y.P.S. Dhaulta, legal aid counsel for the accused-respondent. We have also gone through the entire record. DISCUSSIONS AND REASONING : EVIDENCE ON POSSESSION: 15. As per the earlier version, which is emerging from the search memo (Ext.PW-1/A) prepared by the police after recovery of charas, is that when the police party had reached seat No.35, then they noticed a bag, which was lying on the knees of the accused. At that point, when the police checked this bag, then besides the clothes, they found a polythene bag, which contained charas. The same version reflects from the FIR Ext.PW-9/E, and special report PW-6/A. 16. As per the earlier version of the prosecution, after noticing charas in the bag carried by the accused, the police called the driver, conductor, and the passenger sitting on the adjacent seat No.36 and showed them the said charas. After that, the SHO smelt and tasted the said contraband and, based on experience, found it to be charas. Further case of the prosecution is that at the spot, they prepared spot map (Ext.PW-9/A) and a memo of identification of charas (Ext.PW-1/B). After that, the police took the bus, conductor, driver along with the accused, contraband, the independent witnesses, and Shri Jamshed, who was the passenger sitting on seat No.36, to the police station for further investigation. On reaching the police station, the police procured weight and scale, took out the sample, and sealed the charas. In the police station, the police prepared the seizure memo (Ext.PW-1/A). Thus the initial story is as follows : (a) Sub Inspector Jeet Ram entered into the bus, and from the rear door, head constable Nand Lal (PW-4) accompanied by Constable Vijay Kumar (PW-3) entered in the bus from its front door. In the police station, the police prepared the seizure memo (Ext.PW-1/A). Thus the initial story is as follows : (a) Sub Inspector Jeet Ram entered into the bus, and from the rear door, head constable Nand Lal (PW-4) accompanied by Constable Vijay Kumar (PW-3) entered in the bus from its front door. (b) The police searched the accused, who was sitting on seat No.35, and was carrying a bag on his lap; (c) On seeing the police, the accused became suspicious; (d) Due to suspicion, the police checked the bag and beneath the clothes noticed a polythene bag containing contraband; (e) On noticing the contraband, the police called conductor and driver of the bus and showed the substance to them as well as to passenger Jamshed, who was sitting on seat No.36; (f) After that, inside the bus, the SHO smelt and tasted the contraband, and based on experience, prima facie found it to be charas; (g) The police prepared spot map and memo of identification of charas and took the bus along with Jamshed, Conductor, Driver, and the accused to the police station. 17. Now, the version which appeared during trial is entirely different. What is inferable from the version of witnesses during trial is that only Sub Inspector Jeet Ram entered into the bus, and from the rear door, head constable Nand Lal (PW-4) accompanied by Constable Vijay Kumar (PW-3) entered in the bus from its front door. The SHO was standing outside and on noticing the charas, SHO also came inside and he also brought Driver and the Conductor along with him. 18. The driver of the bus, PW-1 Mahesh Kumar, stated in his examination-in-chief that the police party gave a signal to stop the vehicle on which he halted it. After that, Police personnel came towards him and took him down from the bus and stood by the side of the road. After that, 2-3 police officials entered the bus from the front window, and similarly, 2-3 officials entered the bus from the rear window. After some time, the policeman came out of the bus carrying a bag, and they said that they found a bag inside the bus. He further stated that he did not know to whom the bag belonged. After that, the bus was taken to the police station because there was no light at that place. After some time, the policeman came out of the bus carrying a bag, and they said that they found a bag inside the bus. He further stated that he did not know to whom the bag belonged. After that, the bus was taken to the police station because there was no light at that place. The material omission this witness made was that he did not testify that the police had called him inside the bus and showed him the charas in the bag, which was still lying on the lap of the person sitting on seat No.35. The public prosecutor did not declare this witness as a hostile witness and did not cross-examine him. The examination-in-chief of this witness remained unrebutted. In the cross-examination, driver Mahesh Kumar (PW-1) stated that he, as well as the conductor, came out of the bus. 19. PW-2, Shri Mehar Singh, Conductor of the bus, testified in his examination-in-chief that the Police had asked the driver to switch off the engine and get down from the bus, and even he was also asked to get down from the bus. After that, both of them got down. The Police entered the bus for checking. After some time, the Police came out carrying a bag, and then they claimed it contained charas. He stated that he did not know from where the Police recovered the bag from the bus. Subsequently, the Police personnel enquired from the passengers about the ownership of the bag, and no one claimed it. However, one passenger stated that the bag belonged to a person, but he could not recognize whether he was accused or not. He further clarified that the said person was lean and thin, whereas the accused is stout. However, the public prosecutor did not seek the permission of the Court to declare this witness as a hostile witness, and no leading questions were put to him. His examination-in-chief statement remained unrebutted to this count. 20. Now, as per PW-1 and PW-2, the Driver and the Conductor, two aspects emerge:- a) The initial story of Prosecution that driver, and conductor, both were called inside the bus, and shown charas, which was lying in the lap of the accused, got contradicted. His examination-in-chief statement remained unrebutted to this count. 20. Now, as per PW-1 and PW-2, the Driver and the Conductor, two aspects emerge:- a) The initial story of Prosecution that driver, and conductor, both were called inside the bus, and shown charas, which was lying in the lap of the accused, got contradicted. (b) Secondly, PW-2 testified that when the police had brought the bag out of the bus, then they were not aware of the ownership of the bag, and then they inquired from the passengers about the ownership of the bag. Now, this is in total contradiction to the version of the prosecution. 21. When the police officials stepped into the witness box, instead of corroborating the earliest version, they fell in line with the version stated by the driver and the conductor. 22. Head Constable Vijay Kumar (PW-3) testified in his examination-in-chief that after stopping the bus, Driver and Conductor came out of the bus. He further stated that he, along with other police officials, entered into the bus, and they reached near Seat Nos.35 and 36. One person sitting at seat No.35 had kept a bag on his knees. After that, when Police officials asked him about the contents of the bag, then he got scared, which created suspicion. After that, they brought him along with the bag, out of the bus. After getting down from the bus, SHO checked the contents of the bag. 23. It further specifies that after getting down from the bus, the Police checked the contents of the bag, when they were outside the bus. Now, this is again in contradiction with the earlier story mentioned in FIR and Seizure Memo, wherein the contents of the bag were checked in the bus, shown to independent witnesses, i.e., the passenger sitting on seat number 35, the Driver, and the Conductor. The evidence remained unrebutted because the Public Prosecutor did not re-examine this witness by citing him as a hostile witness. 24. The material difference between the version appearing in Court and the earlier version is that as per the previous version, the Police noticed the charas inside the bus and never brought down the accused out of the bus, except on reaching the Police Station. 24. The material difference between the version appearing in Court and the earlier version is that as per the previous version, the Police noticed the charas inside the bus and never brought down the accused out of the bus, except on reaching the Police Station. Whereas, as per the version appearing from the testimonies recorded in the Court, the Police never checked the bag on the bus, and they checked it only when they brought down the accused out of the bus, and after that, they took the bus to the Police Station. 25. The other prosecution witness Shri Nand Lal (PW-4) also testified in the similar terms in which the police official Shri Vijay Kumar (PW-3) had testified. Even PW-4 very categorically stated that when the accused could not give a satisfactory reply on being asked about the contents of the bag, then he was brought down from the bus. After that, the bag was checked by the SHO in the presence of the Conductor, Mahesh Kumar Conductor, Driver Mehar Singh, and Jamshed, the passenger sitting on seat No.36. 26. SHO Shri K.D. Khan (PW-9) testified that he had entered the bus from the rear door. This witness introduced a new version by saying that he had entered into the bus along with other police officials. Now, this is in total contradiction to the earlier version wherein in search and seizure memo (Ext.PW-1/A), FIR (Ext.PW-9/E), explicitly mentions that when the bus stopped, then from the front window, SI Jeet Singh and the rear window Head Constable Nand Lal and Constable Vijay Kumar had entered into the bus and then they had started searching. During search inside the bus, they had noticed charas. Then SHO, in the presence of Driver and conductor as well as a passenger sitting on seat No.36, asked him to produce a permit or license, which he could not, and after that, the Police directed the Driver to drive the bus to the police station. 27. Even Shri Vijay Kumar (PW-3) categorically stated that the accused was brought down from the bus along with the bag, and then after getting down from the bus, the bag was checked by SHO. PW-4 Nand Lal is similar to the version of PW-3, and he also stated that the accused was brought down from the bus, and then SHO checked the bag. PW-4 Nand Lal is similar to the version of PW-3, and he also stated that the accused was brought down from the bus, and then SHO checked the bag. Even the Driver Mahesh Kumar (PW-1) in examination-in-chief had said that when he was standing outside the bus, then SHO was also standing there. At that time, the police officials came out of the bus carrying a bag and inquired from the driver that to whom the bag belongs to which he replied that he did not know and after that, the SHO directed the bus to be taken to the police station, as there was no light at that place. 28. Coming to the statement of Shri K.D. Khan, SHO (PW-9), who has stated that he had entered the bus from the rear side, and he, along with the Police party, noticed the accused carrying a bag on his knees. However, he contradicted the earlier version of the prosecution by stating that he had asked the accused about the contents of the bag, and on this, he got scared, and then he was brought down from the bus along with the bag. The contradiction which has come in this version is in the earlier statement SHO never entered the bus before the other Police officials had already found the charas in the bag. 29. Even otherwise, there was no reason for the Police to ask the accused to come out of the bus along with the bag without checking the bag within the bus. The improvised version is improbable. This material contradiction casts doubt about the recovery itself in the light of the testimony of the Conductor, PW-2 Mehar Singh, of the bus, who, in his examination-in-chief, testified that the Police had inquired from the passengers about the ownership of the bag and no one had claimed about it. It is pertinent to mention here that the prosecution never rebutted this portion of the testimony of Shri Mehar Singh (PW-2). 30. In light of the case of Prosecution that Conductor and Driver were brought down from the bus in the very beginning, the evidence of the passenger sitting at seat No.36 assumes significance. The investigating officer had taken into possession the bus tickets from Jamshed exhibited as Exts.P-9 to Ext.P-18. 30. In light of the case of Prosecution that Conductor and Driver were brought down from the bus in the very beginning, the evidence of the passenger sitting at seat No.36 assumes significance. The investigating officer had taken into possession the bus tickets from Jamshed exhibited as Exts.P-9 to Ext.P-18. However, the Prosecution had to prove these bus tickets, while examining the Conductor Mehar Singh (PW-2), which the Prosecution never did. The Prosecution gave up Jamshed and did not examine him. Order dated 12.6.2008 passed by the learned Trial Court reads that the Public Prosecutor has given up the witness Jamshed being won over by the accused. Whether the accused was influential enough to win over the prosecution witness Jamshed is questionable, firstly because legal aid counsel represented the accused in the learned trial court as well as in this Court. Secondly, after the arrest, the police had conducted personal search vide memo Ext.PW1/A. Vide this search memo, the police had recovered bus tickets from the accused. As per Ext.PW1/D, the accused was having only 50 rupees in his pocket at that time. The statement of accused under Section 313, CrPC, is that he was going to Chandigarh in search of employment. During the entire trial, the accused never got bail, and he was in judicial custody throughout the trial. Under these circumstances, the allegation on the accused to win over this witness is unbelievable. A mere statement of the public prosecutor that the witness is won over is not sufficient to resolve the necessity of his examination. 31. It has come in the evidence of the Investigating officer, SHO Shri K.D. Khan (PW-9), that the bus was almost full. He explicitly stated that except for 3-4 seats, all the seats were occupied. It also came in evidence of PW-3 that the bus had 52 to 56 seats. Therefore, it points out that the bus had around 48 to 50 passengers in it. The examination of Jamshed assumes importance because of the statement of the conductor Mehar Singh (PW-2) wherein he stated that when the police party had come out of the bus carrying a bag, then they were inquiring from the passengers about the ownership of the bag and no one had claimed it. The examination of Jamshed assumes importance because of the statement of the conductor Mehar Singh (PW-2) wherein he stated that when the police party had come out of the bus carrying a bag, then they were inquiring from the passengers about the ownership of the bag and no one had claimed it. It also assumes importance because of the contradiction in the case of the prosecution that whether the charas was seen inside the bus or outside and whether SHO had entered into the bus at the time of checking or bag was shown to him outside the bus. These versions of the prosecution, which are in contradiction to their case set up initially, are not credible enough to fasten the possession of the alleged charas with the accused. Therefore, the prosecution has failed to prove that from the bus, the bag was recovered from the possession of the accused and none else. SAMPLE TESTED BY LABORATORY DID NOT REPRESENT THE BULK CHARAS: 32. Another aspect of the matter is that there is even not a whisper in the statements of the witnesses in the initial versions or in the statements of the police officials recorded during trial that when the police had drawn two samples of hundred grams of charas from the bulk charas weighing 5 Kgs 200 grams, then they had drawn representative samples. In case the sample represents the bulk, there is no need to send the entire volume for testing. Still, in the absence of evidence that the sample was representative, the accused would have been liable only for the quantity that was tested by the laboratory to be charas, which was 100 grams. EFFECT OF NON-OPENING OF PARCEL CONTAINING BULK CHARAS, IN COURT: 33. The next defect in the present case is that when the case property was produced before the Court, then the parcel containing bulk charas and samples were exhibited as Ext.P-1, P-2, and P-3. Shri Vijay Kumar (PW-3), who was a spot witness, did not even testify about the parcels containing charas, and his testimony starts from the case property, i.e., bag Ext.P-4 onwards. The next prosecution witness Shri Nand Lal (PW-4), has stated that the bulk charas was in parcel Ext.P-1. However, the parcel was never opened to see the contents therein. Shri Vijay Kumar (PW-3), who was a spot witness, did not even testify about the parcels containing charas, and his testimony starts from the case property, i.e., bag Ext.P-4 onwards. The next prosecution witness Shri Nand Lal (PW-4), has stated that the bulk charas was in parcel Ext.P-1. However, the parcel was never opened to see the contents therein. The SHO Shri K.D.Khan (PW-9) in his testimony has also stated that samples are Ext.P-2 and P-3, and the bulk parcel is Ext.P-1, but again, there is no mention of opening of the bulk parcel, Ext.P-1. Shri Prem Singh, MHC, who testified as PW-5 also mentions in similar terms, which reads as follows : “I have seen the parcel Ex.P1 (containing 500 Kgs. Charas). Sample parcels Ex.P2 and Ex.P3, Bag Ex.P-4 shawl Ex.P5, Shirts Ex.P-6 and P- 7 and Lower Ex.P8 today in the court which are the same as deposited with me.” 34. We have also gone through the order sheets of the learned Trial Court. In case such parcel is opened, then after opening, it should be resealed with the seals of the Court, but there is no such order in the order sheets. There is no doubt that this parcel was not opened in the Court. No order depicts that the bulk parcel was ever opened to establish that it did contain charas. The version of the Police that it contained charas cannot be taken on its face value. It was the charas that was the substantive evidence. It is the case of the Police that Ext.P-1 contained charas, but neither did the Court see it, nor it was shown to the witnesses. It was obligatory on the public prosecutor to request the Court to open the contents of the parcel Ext.P-1 and demonstrate that it contained charas in the shape of thick and thin sticks, as was described initially. 35. In every case, it is not necessary to produce the entire volume before the Court. For instance, a goods-train, ship or a truck containing huge quantity of illicit timber or alcohol or poppy husk or some other prohibited article is seized, then in such a situation, it is impossible to produce the entire case property before the Court. Another way to look at it is that in the case of unnatural death the post mortem report substitutes the corpse. Another way to look at it is that in the case of unnatural death the post mortem report substitutes the corpse. Similarly, in the offences falling under the NDPS Act, it is open for the prosecution to obtain inventory from the Judicial Magistrate by following the procedure contained under Section 52(A) of the NDPS Act, 1985. However, in the present case, the prosecution had produced the five kilograms of parcel, which as per the prosecution contained charas in the shape of thick and thin sticks. Now, it was for the witnesses to have a look at that substance to identify such substance to be the same which was seized and it was for the Court to notice that in fact the substance was in the shape of sticks, which were thick, thin or were in any other shape. Resultantly, the substantive evidence is always the case property, but there are ways and means to substitute the same, which was not done in the present case. 36. In Mohinder Singh v. State of Punjab, AIR 2018 SC 3798 , a Three Member Bench of Supreme Court holds, 12. For proving the offence under the NDPS Act, it is necessary for the prosecution to establish that the quantity of the contraband goods allegedly seized from the possession of the accused and the best evidence would be the court records as to the production of the contraband before the Magistrate and deposit of the same before the Malkhana or the document showing destruction of the contraband. 13. In Vijay Jain v. State of Madhya Pradesh, (2013) 14 SCC 527 , this Court reiterated the necessity of production of contraband substances seized from the accused before the trial court to establish that the contraband substances seized from the accused tallied with the samples sent to the FSL. It was held that mere oral evidence to establish seizure of contraband substances from the accused is not sufficient. It was held as under:- "10. It was held that mere oral evidence to establish seizure of contraband substances from the accused is not sufficient. It was held as under:- "10. On the other hand, on a reading of this Court's judgment in Jitendra v. State of M.P., (2004) 10 SCC 562 , we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in Ashok v. State of M.P. (2011) 5 SCC 123 , this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as material exhibit and there was no explanation for its non- production and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant." 37. In Union of India v. Jarooparam, (2018) 4 SCC 334 , Supreme Court holds, 10. Omission on the part of the prosecution to produce the bulk quantity of seized opium would create a doubt in the mind of Court on the genuineness of the samples drawn and marked as A, B, C, D, E, F from the allegedly seized contraband. However, the simple argument that the same had been destroyed, cannot be accepted as it is not clear that on what authority it was done. Law requires that such an authority must flow from an order passed by the Magistrate. On a bare perusal of the record, it is apparent that at no point of time any prayer had been made by the prosecution for destruction of the said opium or disposal thereof otherwise. Law requires that such an authority must flow from an order passed by the Magistrate. On a bare perusal of the record, it is apparent that at no point of time any prayer had been made by the prosecution for destruction of the said opium or disposal thereof otherwise. The only course of action the prosecution should have resorted to is to for its disposal is to obtain an order from the competent Court of Magistrate as envisaged under Section 52A of the Act. It is explicitly made under the Act that as and when such an application is made, the Magistrate may, as soon as may be, allow the application [See also : Noor Aga v. State of Punjab & Anr. (2008) 16 SCC 417 ]. 11. There is no denial of the fact that the prosecution has not filed any such application for disposal/destruction of the allegedly seized bulk quantity of contraband material nor any such order was passed by the Magistrate. Even no notice has been given to the accused before such alleged destruction/disposal. It is also pertinent here to mention that the trial Court appears to have believed the prosecution story in a haste and awarded conviction to the respondent without warranting the production of bulk quantity of contraband. But, the High Court committed no error in dealing with this aspect of the case and disbelieving the prosecution story by arriving at the conclusion that at the trial, the bulk quantities of contraband were not exhibited to the witnesses at the time of adducing evidence. CONCLUSION: 38. Be that as it may, the Prosecution has failed to connect the bag containing charas with the accused. According to the Prosecution, the bag had two shirts and one lower in it. The Prosecution did not prove that these clothes would have fit to the accused. 39. We have also gone through the judgment of acquittal passed by the learned Trial Court. Learned Sessions Judge has discussed the entire evidence and has given well-reasoned findings in Paragraph No.10 of the decision. The judgment is neither perverse nor contrary to law. 40. Given the above discussion, we find no merit in this appeal, and hence, the same is dismissed. All pending applications, if any, are closed. Records be returned.