CR.A/197/1996 on 30 December 2010

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No.197 of 1996

Decided on : December 30, 2009

State of H.P.

…Appellant.

Versus Mange Ram

…Respondent.

Coram

The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramesh Thakur, Assistant

Advocate General.

For the Respondent : None.

Surjit Singh, J (Oral)

State has appealed against the judgment dated 10th March, 1995 of learned Additional Sessions Judge (1), Shimla, whereby respondent Mange Ram, who was charged with and tried for offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has been acquitted.

2. Case of the prosecution, as per evidence on record, is like this. On 16th October, 1992 at 9 a.m., when HC Bhagi Rath (PW-8) of Police Station, Nirmand was on routine patrol duty alongwith Constable Amar Singh, in the Bazaar of Niarmand, he received secret information that a man with Charas had been travelling by Lihanj-Rampur bus. On getting this information, PW-8 Bhagi Rath formed a party, in which two independent witnesses, namely PW-1 Mukand Whether reporters of the local papers may be allowed to see the judgment?

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Lal and PW-2 Ghanshyam, were associated. Tehsildar of Nirmand, namely PW-7 B.R. Thakur was also associated. In the meanwhile, bus reached Nirmand Bus Stop. It was searched. Respondent was found occupying Seat No.26, with a bag kept on his thighs. He was informed that it was intended to search his person and baggage and in case he so desired search could be arranged in the presence of a Magistrate or a Gazetted Officer of any of the Departments notified for the purpose, under Section 41 of the Narcotic Drugs and Psychotropic Substances Act. Respondent allegedly opted for being searched on the spot by PW-8 Bhagi Rath and Tehsildar. On search of his bag Charas, contained in two packets, was recovered, which was weighed and found to be 3.300 kgs. One sample, weighing 10 grams, was separated from both the packets. It was made into a parcel and sealed. Bulk charas was also made into a parcel and that parcel was also sealed. Report of the search and seizure was prepared and sent to the Police Station. The same is Ex. PC. On the basis of this report, case was formally registered vide FIR Ex. PB/1. Sample parcel was sent to the Chemical Examiner, who vide report Ex. PE gave the opinion that the sample was of Charas.

3. Respondent was charged by the trial Court, with the offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. He pleaded not guilty and was, therefore, put on trial.

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4. Prosecution examined two independent witnesses, Tehsildar B.R. Thakur (PW-7) and HC Bhagi Rath (PW-8) to prove search and seizure.

5. The two independent witnesses did not fully support the prosecution version. So, they were cross- examined with the leave of the Court. Tehsildar PW-7 B.R. Thakur and PW-7 HC Bhagi Rath, however, stated that Charas was recovered from the respondent, when he was travelling by Lihanj-Rampur bus.

6. Relying upon the testimony of independent witnesses, trial court observed that mandatory provision of Section of the Narcotic Drugs and Psychotropic Substances Act had not been complied with and, therefore, in view of the law laid down by the Hon’ble Supreme Court in State of Punjab versus Balbir Singh, (1994) 3 SCC 299, the respondent was entitled to acquittal. Trial Court further observed that Section 42(2)[sic, it should have been written 42(1)] had also not been complied with and, therefore, the respondent was entitled to be acquitted on this count also.

7. We have heard the learned Assistant Advocate General. Nobody appears for the respondent. On the last date nobody appeared for him and so we ordered the issuance of notice of actual date of hearing. Notice was issued and even served upon him for today, but he is not present nor has he engaged any counsel.

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8. Section 50 of the Narcotic Drugs and Psychotropic Substances Act is not attracted to the facts of the case, because recovery was not effected from personal search of the respondent but on the search of his baggage. Section 42(1) of the Narcotic Drugs and Psychotropic Substances Act was also not applicable, because the recovery was effected not from any building, conveyance or private place, but from the baggage of the respondent, when he was travelling by a public conveyance and, therefore, it was not Section 42, but Section of the Narcotic Drugs and Psychotropic Substances Act which was applicable.

9. From the evidence on record, we find that report Ex. PE of the Chemical Examiner does not stand connected with the stuff allegedly recovered from the respondent. PW- 3 Shambu Ram stated that he carried a parcel having seal impression ‘D’ to the Laboratory and that the said parcel had been entrusted to him by MHC Khub Ram (who appeared as PW-4) and that he delivered the parcel at the Laboratory. PW-4 Khub Ram testified that he handed over a parcel with seal impression ‘D’ to PW-3 Constable Shambu Ram for being carried to the Laboratory. The witness stated that he was Moharrar Head Constable, at the relevant time. However, neither of the two witnesses stated that any specimen impressions of the seal were also sent to the Chemical Examiner alongwith the sample parcel. In the absence of specimen seal impressions, it could not have been

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ascertained by the Chemical Examiner, if the sample, which was sent to him, pertained to the case in hand or it was a parcel containing stuff of some other case, because normally the seals used by the police officials in sealing the case property produce the impression of letters of English alphabet and many seals producing the impression of letter ‘D’ are supposed to be available with the same and also different police officials, but in different shapes and sizes.

10. Report of the Chemical Examiner also does not speak of comparison of the seal impression on the parcel with any seal impression. Also, we find that NCB form had not been sent alongwith the sample parcel nor had any such form been filled-in.

For the foregoing reasons, we are of the view that the judgment of acquittal does not call for interference, even though we do not agree with the reasoning of the learned trial Court that the respondent is entitled to acquittal on account of non-compliance of provisions of Sections 50 and 42 of the Narcotic Drugs and Psychotropic Substances Act. Hence, the appeal is dismissed.

( Surjit Singh ), J

December 30, 2009(sd) ( Surinder Singh ), J