The presence of tetrahydrocannabinol and cystolithic hair in a sample of charas is sufficient evidence of its nature, and compliance with Section 50 of the Act is not required during the search of a bag or container.

Dharam Chand Chaudhary, J.

Learned Special Judge (Presiding Officer, Fast Track Court), Solan, District Solan vide judgment dated 15.2.2011 passed in case No. 17FTC/7 of 2009, while arriving at a conclusion that there is no compliance of the provisions contained under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as ‘the Act’, nor cogent and reliable evidence produced by the prosecution to show that the contraband allegedly recovered from the respondent, hereinafter referred to as the accused, was charas and also that the evidence available on record is contradictory in nature, has acquitted the accused of the charge framed against him under Section 20 of the Act.

2. The legality and validity of the impugned judgment has been questioned on the grounds inter alia that cogent and reliable evidence produced by the prosecution has been appreciated by learned trial Judge in a slip shod and perfunctory manner and as a result thereof, based its findings on hypothesis, surmises and conjectures. The reasoning given by learned trial Court while acquitting the accused of the charge is manifestly unrealistic, unreasonable and also unsustainable. The present being a case of recovery of the charas from the bag the accused was carrying on his right shoulder, therefore, Section 50 of the Act was not applicable in the present case. Also that learned Court below has erroneously ignored the reports of chemical examiner Ex.PW-10/E and Ex.PW-10/F because in view of the presence of tetrahydrocannabinol (THC) in the sample sent for analysis, the same was that of charas. Also that learned Court below should have not discarded the prosecution evidence having come on record by way of testimony of constable Surender Singh PW-1, HC Yadav Chand PW-2 and the I.O. Santosh Thakur, PW-11, who all were present on the spot during the course of search and seizure conducted there. The acquittal of the accused in the case in hand is stated to be in utter disregard of the evidence having come on record by way of their testimonies. There being no material contradiction nor any omission in the prosecution evidence, learned trial Court has erroneously given weightage to the admissions such as the seal used for sealing the parcels containing the recovered charas and sample parcels not produced in evidence and failure to associate independent witnesses etc.

3. The facts of the case in a nut-shall are that PW-11 ASI Santosh Thakur accompanied by PW-1 Constable Surinder Singh, PW-2 HC Yadav Chand and PW-3 Naresh Kumar vide Rapat Rojnamcha Ex.PW-11/A left police Station, Solan at 9.00 p.m. in search of a proclaimed offender towards Ghundidhar, Pajo, Shamti, Jatoli side. The police went upto Marridin Factory. On way back, when reached near Kali Mata temple, Shamti at 10.30 p.m. the accused was noticed coming on foot from opposite direction. He was holding a bag on his right shoulder. On seeing the police party, he turned back and tried to flee away. He, however, was overpowered and apprehended by the police there. On inquiry about his antecedents, he disclosed his name and address etc.

4. PW-1 Constable Surender Singh and PW-2 HC Yadav Chand were associated as independent witnesses. Since the I.O. PW-11 suspected that the accused may be in possession of some narcotic drugs or psychotropic substances, therefore, he was apprised that the search of his bag and person is required. The accused was also apprised that if he wants to give his search to a gazetted officer or the magistrate that is his legal right. The consent memo Ex.PW-2/A was reduced into writing. The accused, however, opted for his search to be conducted by the police official present there. It is thereafter, PW-11 opened the bag Ex.P-1, the accused was carrying on his right shoulder. In one of the portion of the said bag, Towel Ex.P-5, Jean Pants Ex.P-6, T-Shirt Ex.P-7 were recovered. In other portion of the bag one polythene bag Ex.P-8 was found kept. On opening