(1.) This appeal is directed against the judgement of the learned Additional Sessions Judge, Mandi, District Mandi in Sessions Trial No. 25 of 1993, decided on 2.6.1994 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter, referred to as the 'NDPS Act').
(2.) Briefly stated the facts of the case are that on March 28, 1993 PW/10 Chaman Lal, SHO, Police Station, Sundernagar was on Mela duty alongwith PW/4 LHC Dharam Chand and left the Police Station to go to Bhojpur where a fair was being held. When they reached Chatrokhari chowk at about 1.45 p.m., they met PW/1 Sh. R.S. Negi, Dy. S.P. All of them proceeded to Bhojpur. When they were near the PWD workshop, the accused was seen walking ahead with the bag Ext.P/1 on his shoulder. On seeing the police party, the accused got scared and tried to run away. This aroused the suspicion of the police officials and the accused was apprehended. In the meanwhile, PW/2 Krishan Chand was coming from the side of Chatrokhari chowk in his auto rickshaw. He had two passengers, i.e., Surinder Pal who is Head Constable in the CID and one Pardhan Ram Dass. They were stopped by the police party and associated with the search. Thereafter, the bag Ext.P/1 was searched. Inside this bag Ex.P/1, another cloth bag Ext.P/3 was found. This contained Charas sticks. LHC Dharam Chand was sent to bring a scale which he brought. Thereafter, the charas was weighed and found to weigh 1 kilogram and 950 grams. Two samples of 50 grams each were separated and sealed in parcels Ext.P/4 and Ext.P/5 with seal 'H'. The remaining charas was sealed in separate parcel Ext.P/2 with the same seal. The entire case property was taken into possession vide memo Ext.PW-1/A which bore endorsement of PW/1. Other formalities were completed and information was sent to the concerned officials. Thereafter, the case property was deposited by Chaman Lal with MHC Gurdas Ram PW/3 on the same date. One sample Ext.P/4 was sent to the Forensic Science Laboratory, Bharari, Shimla on March 31, 1993 by MHC Gurdas Ram through PW/9 LHC Durga Dass who deposited the same there on April 2, 1993. Report Ext.PW-10/D was received wherein it was found that the sample contained charas and the resin content was found to be 40.2 per cent. On the basis of the aforesaid investigation, the Challan was filed and the accused was charged for having committed the aforesaid offence. The accused pleaded not guilty and claimed trial. After trial, the accused has been acquitted. Hence the present appeal.
(3.) The accused has been acquitted mainly on two grounds. Firstly that the provisions of Section 50 have not been complied with and secondly, Surinder Pal to whom the seal was given was not examined and, therefore, the link evidence is missing. As far as the first point is concerned, the law by now is clear that when the search of the bag is conducted then the provisions of Section 50 are not attracted. Reference need only be made to the latest judgment of the Apex Court in State of Haryana v. Mai Ram, 2008 8 SCC 292t wherein it has been clearly held that when the contraband substance is recovered from the bag which is carried by the accused, it is not a case of personal search and non-compliance of Section 50 will have no effect.