STATE OF HIMACHAL PRADESH Vs. OM PARKASH

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment dated 28.9.2002, passed by the learned Sessions Judge, Chamba in Sessions Trial No. 20 of 2002, whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act).

(2.) THE prosecution story, in brief, is that on 10th December, 2001, PW -7 Shri Gyaneshwar Singh, the then Assistant Superintendent of Police, Chamba was present at Koti Chowk alongwith other police officials on patrolling duty. District Chamba had been declared as a disturbed area and the police officials had to look out for terrorists and other suspicious persons. They saw a person coming from Tissa side, who was carrying a gunny bag on his shoulder. On seeing the police officials, this person turned back and tried to move fast towards Tissa. PW -7 suspected that the accused may be a terrorist, possessing some explosive substance. He, therefore, opened the gunny bag. Inside this bag, there was another plastic bag and inside this plastic bag charas had been kept.

(3.) AT the outset, it may be stated that Section 50 of the NDPS Act has no applicability to the facts of the case since the recovery was not made as a result of personal search of the accused but the contraband was recovered from the gunny bag being carried out by the accused. The Apex court in State of Himachal Pradesh vs. Pawan Kumar Latest HLJ 2004 (SC) 1247 has clearly held that in such cases the provisions of Section 50 of the NDPS Act are not attracted.