STATE OF HIMACHAL PRADESH Vs. CHARANJIT

JUDGEMENT

(1.) This appeal by the State is directed against the judgment dated 15.2.1995 delivered by the learned Sessions Judge, Shimla in Sessions Trial No. 50 -S/7 of 1993 acquitting the accused of having committed an offence punishable under Sec. 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).

(2.) The prosecution case in brief is that on 6.5.1993 S.I. Balak Ram, S.H.O. Police Station, Sadar, Shimla (PW -7) was on patrolling duty near Rivoli Cinema alongwith HC - Virender Kumar (PW -2) and Constable Jagdish Chand. The accused came from the bus stand towards the Rivoli Cinema. On suspicion, the accused was overpowered and then the consent of the accused was obtained for his search. The accused agreed to be searched before the police. In the meantime a telephonic information about the incident from the shop of Sh. Harbans Singh was given to the Dy. S.P. Sh. Brij Lal (PW -6) who reached at the spot within 10 - 15 minutes. Thereafter another consent memo Ext. PW 1/B was prepared. The personal search of the accused was conducted and the search led to the recovery of the contraband in a polythene bag. The substance was weighed and found to be 500 grams. Two samples of 25 grams each were drawn. The two samples and the remaining bulk Charas were sealed with seal -A which was taken into possession vide memo Ext. PW 1/D. The accused was arrested vide memo Ext. PW1/E. Thereafter the codal formalities were completed. The report was sent to the higher officers and Ruka Ext. PW3/A was sent for the registration of the F.I.R. Then the accused and the case property were produced before Inspector Madan Lal (PW -4). One of the samples was sent to the chemical examiner who vide report Ext. PW 7/D opined that the sample is that of Charas. On this basis challan was filed against the accused.

(3.) The learned trial Court has acquitted the accused mainly on the ground that there is no compliance of Sec. 42 or Sec. 50 of the Act. As far as Sec. 42 of the Act is concerned, that is not at all applicable to the facts of the present case since there is nothing on record to show that this was a case of prior information. Even assuming that it was a case of prior information, recovery was made in a public place and it would be in Sec. 43 and not Sec. 42 of the Act which would be applicable.