STATE OF H.P. Vs. GIAN CHAND

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment dated 24.7.1996 delivered by the learned Sessions Judge, Mandi, Kullu and Lahaul Spiti Districts at Mandi, in Sessions Trial No. 11/96 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (here -in -after referred to as the NDPS Act).

(2.) THE prosecution story, in brief, is that on 28.11.1995 PW -7 S.I. Bishambar Dutt, who at the relevant time was posted as SHO Jogindernagar was on patrolling duty alongwith other police officials in Jogindernagar Bazar. He received secret information that accused Gian Chand, who is running a Biri/Cigarette shop (Khokha) is indulging in the sale of charas. PW -7 formed a raiding party and associated Pyar Singh and Amar Chand as the independent witnesses and thereafter the shop of the accused was searched. On search of the shop 900 grams charas was recovered hidden by the accused under his seat. A sample was drawn from the said charas. The same was sealed. The sample was sent for chemical examination and on analysis the Chemical Examiner reported that the sample was of charas vide his report Ext.PW -7/B. On the basis of this evidence challan was filed and the accused was charged with having committed an offence punishable under Section 20 of the Act.

(3.) THE Apex Court in State of Punjab v. Balbir Singh : (1994) 3 SCC 299, Abdul Rashid Ibrahim Mansuri v. State of Gujarat : (2000) 2 SCC 513, Karnail Singh v. State of Rajasthan : (2000) 7 SCC 632 and in many other cases has held that the provisions of Section 42 are mandatory in nature and non -compliance thereof renders the search illegal.