The court emphasized strict compliance with Section 50 of the NDPS Act, holding that failure to inform the accused of his right to a personal search before a Gazetted Officer or Magistrate invalidates the search and renders the evidence inadmissible.

JUDGMENT :

Ranjan Sharma, J.

State of Himachal Pradesh, being appellant, has come up in the instant appeal under Section 378 of the Code of Criminal Procedure, assailing the judgment dated 16.03.2015, passed by Learned Special Judge (1), Mandi [HP], in Sessions Trial No 48 of 2010, titled as State of Himachal Pradesh versus Tara Chand, acquitting the Respondent-accused herein, for the offence under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 [referred to as ‘NDPS Act’ herein], alleging recovery of 450 grams of Cannabis-Charas from his conscious and exclusive possession on 29.03.2010 at about 08:10 a.m. at Kupardhar.

PROSECUTION STORY:
2. Factual matrix, of the prosecution story is, that a police patrolling party headed by PW-9 ASI Orender Singh; PW-1 Constable Ashwani Kumar ; PW-2 HHG Brahma Nand and HHG Baldev had gone in Government vehicle towards Ghatasni, near Kupardhar, at about 08:10 a.m. During patrolling a vehicle, tempo trax, bearing registration No. HP-01 M- 3704, came on the spot, which was full of passengers. The vehicle was stopped by the police for the purposes of checking. On seeing the police party, Respondent-accused who was sitting on the backside of vehicle became perplexed. On suspicion, Respondent -accused was directed to alight from the vehicle and his pant was found bulging out, and the accused was suspected having some contraband inside his pant. The police party associated PW-3 Ajay Guleria and Bhim Chand (owner of temp trax-vehicle) as witness to the incident. The consent of the Respondent -accused for his personal search was obtained vide Consent memo Ex PW-1/A. The members of the police party afforded their search to the accused vide memo Ex. PW-1/B and nothing was recovered from the police party. Thereafter, police conducted the personal search of the respondent-accused by making him to remove his pant-jeans, when, a packet wrapped with cello tape was recovered from the areas near the private parts of body of accused and the same was found to be containing black substance in the shape of sticks and after smelling and testing the same came out to be Charas and thereafter police prepared Identification Memo of contraband vide Ex PW-1/C and on weighing, the contraband was found to be 450 grams. The recovered contraband alongwith cello tape and polythene wrapper was kept in parcel which was sealed with five seals of impression “H”. The recovered contraband was taken into possession vide memo Ex PW-1/E. The photographs clicked vide Ex. PW-2/A and Ex PW-2/B and NCB form Ex PW-8/D was filled in on the spot and facsimile of seal was obtained on NCB form and separately also.

2(i). The Investigating Officer prepared Rukka Ex. PW-9/A and the same was sent through PW-1- Constable Ashwani Kumar to PW-8 SHO-SI Sohan Singh, who recorded FIR ExPW-8/A on 29.03.2010. The Investigating Officer, PW 9 Orender Singh, prepared Spot Map, Ex PW 9/B and recorded the statements of witnesses. The respondent-accused was arrested vide memo ExPW-9/D on 29.03.2010 at 01:30 p.m. After completing the codal formalities, the case property was handed over to PW-8 SI Sohan Singh, who re-sealed the same with three seals of impression “S” and drew the sample separately and facsimile was obtained on NCB form also. The case property was sent to Malkhana and PW-5-HC Prem Singh made its entry in Malkhana register ExPW-5/A. On 30.03.2010, sealed parcel containing contraband alongwith other documents, NCB form and sample seals were sent to Forensic Science Laboratory, Junga through PW-7-HHC Parma Dev vide Road Certificate ExPW-5/B and the case property was deposited with FSL and after receipt of the report from Chemical Examiner, Ex. PW-10/B, the recovered contraband was verified to be Cannabis-Charas. During investigation special report Ex. PW-4/A was delivered to Additional Superintendent of Police, Mandi