IMPORTANT POINTS
1. Once possession of contraband under NDPS Act is established, person who claims that it was not conscious possession has to establish it.
2. Section 50 NDPS Act applies only in case of personal search of a person and does not extend to search of a vehicle or container or a bag or premises.

JUDGMENT

Arijit Pasayat, J.-Since these three appeals involve identical issues they are disposed of by this common judgment.

2. The appellants and one other person faced trial for alleged commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act ).

3. All the five accused were found guilty of the alleged offence and all of them were sentenced to undergo rigorous imprisonment for a term of 10 years and to pay a fine of Rs. 1 lakh with a default stipulation of a further rigorous imprisonment of 3 months in case of default to pay the fine.

4. By the impugned judgment the High Court of Himachal Pradesh at Shimla dismissed the appeals filed by the accused appellants.

5. In appeal Nos. 786/2002 and 788/2002 at the Special Leave Petition stage, there were four petitioners. The special leave petition so far as petitioner Goyal Nath is concerned was dismissed by an order dated 5.8.2002.

6. Accusations which led to the trial of the accused appellants in a nutshell is as follows:

7. On 5.10.1999, a secret telephonic message was recorded by Sunder Lal, A.S.P. (PW-11) that charas was being transported in a Maruti Esteem blue car bearing No. CHO-IE-2764 which was coming towards Oachghat. The information was reduced by him into writing. He gave directions to the SHO, Police Station, Solan to send the information to the Superintendent of Police and thereafter proceeded towards the spot where the car was expected to come. On reaching the spot, he formed a raiding party consisting of Jainarain (PW-1) and Ashwani Kumar Gupta (PW-2) and the car was stopped by the raiding party. Accused, Manjit Singh was driving the car and the remaining accused persons were sitting therein. In the presence of witnesses, Jainarain (PW-1) gave an option to the accused persons as to whether they wanted to be searched by a Magistrate or by him. Accused appellants consented for the search by Jainarain (PW-1). On personal search of the accused persons nothing incriminating was found on their person. When the car was searched, a black coloured bag was found which contained a steel doloo kept in a plastic bag. The said doloo contained 820 grams of charas. After separating two samples of 25 grams each the remaining charas were separately sealed and samples were sent to the Officer Incharge, Police Station, Solan for registration of a case. On the basis of the information FIR was recorded at the Police Station. The car along with the documents and the key were also seized. The sealed parcels of the case property were handed over to the SHO (PW-9) who re-sealed them. The samples were analysed by the Chemical Examiner who filed a report vide Ext.PW-10/A with the finding that the samples were that of charas. On being satisfied about commission of offence under Section 20 of the Act, a charge sheet was submitted. After framing of charge, the accused persons faced trial.

8. To substantiate its accusation, prosecution examined 11 witnesses. The accused appellants pleaded innocence. On consideration of the evidence on record, the accused persons were convicted and sentenced as aforesaid. The appeals preferred by the accused appellants were dismissed by the impugned judgment.

9. Mrs. Subhadra Chaturvedi, learned amicus curiae appearing for the accused appellants submitted that the prosecution was totally without basis and there were several irretrievable infractions of statutory provisions which render the trial vitiated and consequently the judgments are unsustainable.

10. Firstly, it was submitted that the mandatory requirements of Sections 42 and 50 were not complied with. Further, the officials had tampered with the samples as the weight of the sample was less than what was indicated.

11. Elaborating the different pleas, it was submitted that there was no material to show that the information which was required to be transmitted to the superior authority was so done. Further, the finding that there was no requiremen