ORDER

1. This appeal against acquittal filed by the State of Rajasthan arises out of the following facts:

1.1 At about 5:00 p.m. on the 2nd February, 1988 the Station in charge of police station Sangdia received information through an informer that one Tara Singh would be coming near the Jhandewalan Sikhan river, carrying opium. The necessary entries etc. were made in the Police Station register and a raiding party was organised by the Police Officer. As the raiding party reached near Jhandewalan Sikhan at 6:00 p.m. a person carrying a white coloured bag was seen coming from the opposite side and on seeing the police party took a sudden turn and started running away. He was chased and apprehended and on enquiry revealed his name as Tara Singh, the Respondent herein. An offer of a search in terms of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called 'the Act'), was, accordingly, made to him and he stated that he would like to be searched in the presence of the Station incharge himself. He was, accordingly, searched and the bag that he was carrying was found to contain 8 kg. of opium. Samples of the opium were taken out and sent to the laboratory for analysis and the balance was deposited in the Malkhana. On the completion of the investigation, the Respondent was charged under Sections 8/15 of the Act and was brought to trial. The trial court relying on the evidence of several witnesses who had constituted the raiding party as also the report of the laboratory, held that the case against the Respondent had been proved beyond doubt. He was, accordingly, sentenced to 10 years R.I. and to a fine of Rs. 1 lakh. An appeal was thereafter filed by the Respondent in the High Court. The High Court allowed the appeal on two grounds: (i) that the provisions of Section 50 of the Act had not been complied with and the offer to the accused that he could be searched in the presence of a Gazetted Officer or Magistrate had not made to him; and (ii) that there was no evidence to show as to when the sample had been sent to the laboratory, as the forwarding letter dated 26th February, 1998, of the Superintendent of Police (Exhibits P20 and P21) sent along with the samples did not explain why the samples had reached the laboratory on the 9th March, 1998 and it was not thus clear where the samples had remained between the 26th February, 1998 and 9th March, 1998. The appeal was, accordingly, allowed and the Respondent was, acquitted. It is in these circumstances that the present appeal has been preferred by the State.

2. At the very outset, it must be understood that the provisions of Section 50 would no longer be applicable to a search such as the one made in the present case as the opium had been carried on the head in a gunny bag. A Bench of this Court in State of Himachal Pradesh v. Pawan Kumar (2005) 4 SCC 350, after examining the discrepant views rendered in various judgments of this Court has found that Section 50 of the Act would not apply to any search or seizure where the article was not being carried on the person of the accused. Admittedly, in the present case, the opium was being carried on the head in a bag. Mr. Abhishek Gupta, the learned Counsel for the Appellant-State, therefore, appears to be right when he contends that the observations of the High Court that the provisions of Section 50 of the Act would not be applicable was no longer correct in view of the judgment in Pawan Kumar's case. We find, however, that the second aspect on which the High Court has opined calls for no interference. As per the prosecution story the samples had been removed from the Malkhana on the 26th of February, 1998, and should have been received in the laboratory the very next day. The High Court has, accordingly observed that the prosectuion had not been able to show as to in whose possession the samples had remained from 26th February, 1998 to 9th March, 1998. The High Court has also disbelieved the evidence of P.W.