Crl.A. No. 262 of 2006                                                                                                                                                  REPORTABLE 1

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 262 of 2006

STATE OF RAJASTHAN ..... APPELLANT

VERSUS

 TARA SINGH    .....   RESPONDENT

O R D E R

1. This appeal against acquittal filed by the State  

of Rajasthan arises out of the following facts:

1.1 At about 5:00p.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  6:00p.m.  a  person  

carrying a white coloured bag was seen coming from the

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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

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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 26t  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

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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. 6  

and P.W.9,  the former being the Malkhana incharge and  

the  latter  being  the  Constable,  who  had  taken  the  

samples to the Laboratory to the effect that the samples  

had been taken out on the 9th of March, 1998 and not on  

the 26th February, 1998.  The Court has also found that  

in the absence of any reliable evidence with regard to  

the authenticity of the letter dated 26th February, 1998  

it had to be found that the samples had remained in some  

unknown custody from the 26th February, 1998 to 9th March,  

1998.  We must emphasise that in a prosecution relating

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to the Act the question as to how and where the samples  

had been stored or as to when they had despatched or  

received  in  the  laboratory  is  a  matter  of  great  

importance on account of the huge penalty involved in  

these matters.  The High Court was, therefore, in our  

view, fully justified in holding that the sanctity of  

the samples had been compromised which cast a doubt on  

the prosecution story.  We, accordingly, feel that the  

judgment of the High Court on the second aspect calls  

for  no  interference.   The  appeal  is,  accordingly,  

dismissed.  The respondent is on bail.  His bail bonds  

stand discharged.

..............................J [HARJIT SINGH BEDI]

..............................J [CHANDRAMAULI KR. PRASAD]

NEW DELHI MARCH 29, 2011.