STATE OF H.P. Vs. GAMA RAM

JUDGEMENT

(1.) THE present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment dated 17.1.2000, passed by the learned Special Judge, Solan in Case No. 2 -K/7 of 1999, acquitting the alleged accused for the offence under Sections 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'Act') in reference to FIR No. 74/98.

(2.) THE prosecution case is that on 8.10.1998 a secret information was received that accused is dealing in sale and purchase of narcotic substance. Therefore, a raiding party was constituted and from the personal search of the accused, 22 grams of charas was recovered. Out of the recovered charas two samples of 5 grams each were taken and sealed with seal impression 'S'. The seal was given to Sanjay Kumar witness at the spot and 'NCB' form was filled in and the SHO also disclosed the grounds of arrest to the accused and thereafter sent ruka for registration of the case. Statements of witnesses were recorded at the spot. On receipt of Chemical Examiner's report and completion of investigation, the challan was presented against the accused for trial.

(3.) PROSECUTION examined PW -1 LHC Banwari Lal, PW -2 SI Vijay Kumar, PW -3 Sanjeev Kumar, PW -4 Gurpal Singh, PW -5 Suresh Kumar, PW -6 SI Hem Singh and PW -7 Inspector Panna Lal. In present case, the recovery has become doubtful as two independent witnesses namely PW -3 Sanjeev Kumar, PW -4 Gurpal Singh associated by the police in the raiding party while making search and recovery of charas from the accused have not supported the prosecution and they were declared hostile. Nothing is emanated from the record that before making search he was apprised of his entitlement of being searched and nothing emanated that he was ready to be searched by the Magistrate, by the Gazetted Officer and by taking consent of search, personal search was made and in this behalf mandatory requirement for compliance of Section 50 of the Act was not complied with. For non -compliance of statutory requirement of Section 50 of the Act and non -support of independent witnesses PW -3 & PW -4, the prosecution case has become doubtful.