STATE OF HIMACHAL PRADESH Vs. PAWAN KUMAR

JUDGEMENT

(1.) The respondent was found guilty of offence under Section 18 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act') by Sessions Judge and sentenced to undergo rigorous imprisonment for 10 years and fine in the sum of Rs.1,00,000/- and in default of payment of fine to undergo further rigorous imprisonment for two years. The High Court, by the impugned judgment, has set aside the conviction of the respondent. The State is in appeal on grant of leave.

(2.) Briefly, the case of the prosecution is that the respondent was apprehended at a bus stand on 28th July, 1994 by PW-7 (Hukam Singh), Head Constable Munshi Ram and few others who suspected that he was carrying opium because of smell coming from his bag. Head Constable Munshi Ram telephonically informed PW8 (Prem Thakur), Deputy Superintendent of Police/SHO, Police Station Sadar Mandi about the apprehension of the accused. PW-8 went to the spot and inquired from the accused about his willingness to be searched by the Police or by a Magistrate. The accused showed his willingness to be searched by the police. PW-8 conducted the search of the accused and found opium which was being carried in a bag. On the recovery, opium was weighed and was found to be 360 gms. Two samples of the opium were separately made in two parcels. The remaining opium was put into the third parcel. All the three parcels were sealed. One of the samples was sent to the laboratory at Kandaghat for chemical analysis and the Assistant Chemical Examiner opined vide report (Exhibit PF) that the sample was that of opium.

(3.) The High Court has acquitted the respondent primarily on two grounds. One the report (Exhibit PF) has to be excluded from consideration and in absence thereof, there is no other evidence to establish that the material recovered from the possession of the accused was opium. The second ground is non-compliance of Section 50 of the NDPS Act.