STATE OF H P Vs. ASHRAF KHAN

JUDGEMENT

(1.) This appeal by the State is directed against the judgment dated 11.5.1999 delivered by the learned Sessions Judge, Chamba, in Sessions Case No. 6 of 1998 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein referred to as the Act).

(2.) The prosecution story, in brief, is that on 11.11.1997 PW-9 Jeet Singh, who was at that time posted as SHO Police Station, Kihar, was on patrolling duty alongwith six police officials, namely, Gulab Singh, Ashok Kumar, Jagat Ram, Om Prakash, Sham Lal and Kishan Chand. They had laid a Naka near village Mand Panihar on the road. At about 8.30 a.m they saw a person coming from the upper side of the road. He was carrying a gunny bag on his shoulder. The said person was stopped on the basis of suspicion. Three local witnesses, Taj Deen, Subhan and Piar Chand, were associated as independent witnesses. The accused was informed that he was suspected of carrying some contraband and therefore, an option was given to him of being searched by the police party or a Gazetted Officer or by a Magistrate. The accused after disclosing his name agreed to be searched by the police party. On the search of the gunny bag maize cobs were found. When these maize cobs were removed a rexine bag was recovered and on opening of this bag three polythene bags containing charas were recovered. Scales and weights were arranged through independent witness Taj Deen and on weighment charas was found to be six kilograms. Two samples of 20 grams each were drawn out of this charas and both these sample parcels and the bulk charas were sealed with seal 'X'. The other case property including the gunny bag was also sealed. Rukka Ext.PH was prepared and sent through constable Ashok Kumar to the police station for registration of the case. The accused was intimated about the grounds of arrest vide memo Ext.PE and he was then arrested. The Investigating Officer also prepared a rough sketch map Ext.PK on the spot. Special report Ext.PJ was sent to the Superintendent of Police, Chamba. One of the samples was sent to the Chemical Examiner, who vide his report Ext.PL opined that the sample was of charas and thereafter challan was filed in Court. Accused was charged with having committed the offence aforesaid. He pleaded not guilty and claimed trial. After trial he has been acquitted. Hence this appeal by the State.

(3.) One of the main grounds which weighed with the learned trial Court while acquitting the accused was that Section 50 of the Act had not been complied with. In fact, Section 50 is not applicable to the facts of the case since the offending substance was recovered not on personal search of the accused but on the search of the gunny bag being carried by him and therefore, as per the law laid down by the Apex Court in State of Himachal Pradesh v. Pawan Kumar Latest,2004 2 HLJ(SC) 1247 Section 50 would not be applicable.