The judgment emphasizes the importance of conclusive evidence in proving the charges and considers the period of detention as sufficient punishment in sentencing.

Surjit Singh, J.

1. These two appeals, one by the State of Himachal Pradesh and the other by Mr. Jens Astrup, are directed against the same judgment, i.e. judgment dated 30.11.1996 of Sessions Court, Kullu, whereby Mr. Jens Astrup, who was tried for offences, under Section 20 of the Drugs and Psychotropic Substances Act, 1985, Section 14 of the Foreigners Act and Section 419 IPC, has been convicted for the later mentioned two offences and sentenced to undergo five years rigorous imprisonment and pay fine of Rs. 3000, in respect of offence, under Section 14 of the Foreigners Act and to undergo three years rigorous imprisonment and pay fine of Rs. 1000, in respect of offence, under Section 419 IPC, but has been acquitted of the offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act.

2. Mr. Jens Astrup, hereinafter called accused, has appealed against his conviction and sentence for the aforesaid two offences, while the State has appealed against his acquittal, in respect of offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

3. Case of the prosecution, as it emerges from the record, is like this. Accused Jens Astrup was apprehended on 1.1.1996 at Manikaran. On seeing the police, he tried to run away. Police official, namely PW-9 H.C. Bhagi Rath, suspected that he was carrying some contraband with him. So, he told him that it was intended to search his person and he had a right to be searched in the presence of a Magistrate or a Gazetted Officer of any of the notified departments and in case he so desired, his search could be conducted in the presence of a Magistrate or such Gazetted Officer. Appellant opted for being searched in the presence of Judicial Magistrate. He was taken to PW-2 Shri J.L. Chauhan, Additional Chief Judicial Magistrate, Kullu and his rucksack was searched. On search 75 grams Charas was recovered. Two samples, each weighing 25 grams, were separated. The samples and the bulk Charas were made into three separate parcels. All the parcels were sealed with a seal that produced the impression of English letter 'T'. The samples were handed over to PW-9 HC Bhagi Rath, who produced the same to PW-7 Kuldip Chand Rana, the then SHO, Police Station, Kullu. The three parcels were resealed by PW-7 SHO Kuldip Chand Rana with his own seal that produced the impression of English letter 'S'. The parcels were then deposited with PW-4 Kanshi Ram, MHC. He was officiating as stop gap MHC those days. So, on joining of duty by PW-5 Sato Kumar, the regular MHC, he (PW4 Kanshi Ram) handed over the three parcels to him. One sample parcel was sent to Chemical Examiner, who vide report Ext.PW7/A, gave the opinion that the contents of the sample contained Charas.

4. Appellant was not possessing any passport for being in India, even though he is not an Indian citizen, but a Denmark national. He also disclosed to PW-9 HC Bhagi Rath that he was a French national and his name was Hens Anderson. So, the accused in addition to being charged with offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, was charged with offences, under Section 14 of the Foreigners Act and 419 of the Indian Penal Code.

5. Accused is though represented by a Counsel, but nobody has appeared for him. Initially, he had engaged a local lawyer as his Counsel. Later on, he engaged some Counsel from Jallandhar. Notice of actual date of hearing was sent to that Counsel of Jallandhar, but neither the notice has been received back nor has anybody appeared to represent the accused.

6. We have gone through the evidence and heard the learned Additional Advocate General.

7. First we take up the appeal filed by the State. We find from the record that the sample parcel, which was sent to the Chemical Examiner for analysis, was sealed with only one seal and the seal impressions on that parcel were of letter 'S' of English alphabet, per testimony of PW-5 MHC Sato Kumar. The witness very categoricall