The prosecution must prove the safe custody of seized samples beyond reasonable doubt to rule out the possibility of tampering.

Ms. Kamlesh Sharma, J.—The appellant in this appeal is aggrieved by the judgment dated 1.5.1998/4.5.1998 passed by Sessions Judge (exercising the powers of Judge Special Court), Kangra at Dharmashala whereby he was convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the Act) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. one lac, in default of payment of fine the appellant is to further undergo rigorous imprisonment for a period of six months.

2. Brief facts of the prosecution case are that on 14.11.1997 the patrolling party headed by A.S.I. Baldev Ram PW-7 in the company of Nirmal Singh PW-2 the then Municipal Counsellor of Municipal Council, Dharamahala, were proceeding towards Bhagsunag. When they reached near rain shelter, they found the appellant trying to conceal himself behind the rain shelter, which raised suspicion and A.S.I. Baldev Ram decided to search the appellant. After giving his personal search A.S.I. Baldev Ram in the presence of Nirmal Singh PW-2 and one Rajiv Kumar searched the appellant and found a material like Charas in the form of Batties concealed in the belt around his waist under the sweater. The recovered material like Charas was weighed and found to be 860 gms. out of which two samples of 25 gms. each were separately sealed with the seal impression H\ The seal after its use was handed over to Nirmal Singh PW-2. On confirmation that the material like Charas was in fact Charas as per the report of Chemical Examiner, the challan was put up and the case was tried by the Special Court, which resulted into the conviction and sentence of the appellant.

3. On the basis of prosecution evidence the Special Judge has come to the conclusion that since it was a case of chance recovery, the compliance of Section 50 of the Act was not required. The Special Judge has further come to the conclusion that after the recovery the provisions of the Act have been duly followed. The Special Judge has also found that the appellant has only denied the recovery of Charas but not his personal search. The discrepancies pointed out in the statements of Nirmal Singh PW-2 and Investigating Officer Baldev Ram PW-7 are also not found material as discussed in paragraph 24 of the judgment.

4. We have heard learned Counsel for the appellant and the learned Additional Advocate General. The learned Counsel for the appellant has vehemently urged that from the evidence on record the case of the prosecution is not proved beyond reasonable doubt. The first submission made by the learned Counsel is that the grounds of arrest, as provided under sub-section (1) of Section 52 of the Act, were not given to the appellant, as the copy of the memorandum Ex. PW-2/C of intimation of grounds of arrest was not found in the possession of the appellant during his personal search. It is argued that had the memorandum Ex. PW-2/C of intimation of grounds of arrest been served upon the appellant, this would have been found in his possession and would have been mentioned in memorandum of his personal search Ex. DA. We do not find any substance in this submission. So far service of memorandum of grounds of arrest Ex. PW-2/C is concerned, one of its witnesses Nirmal Singh PW-2 has categorically stated in his examination-in-chief that it was signed by him and served upon the appellant. This part of the statement of Nirmal Singh PW-2 has not been assailed in cross-examination. Otherwise also, this witness, who was the then Municipal Councillor of Municipal Council, Dharamshala had no reason to depose falsely against the appellant. So far memorandum of personal search Ex. DA is concerned, it pertains to the articles found in the possession of the appellant and the memorandum of arrest Ex. PW-2/C, which was served upon him before his arrest, need not be mentioned in it.

5. Learned Counsel for the appellant has further urged that the prosecution has not been