1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 262 of 1999 Decided on September 16, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Jagat Ram ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr. R.K. Sharma, Senior Additional Advocate General, with Mr.Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Rakesh Dhaulta, Advocate. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 27.2.1999, passed by Learned Sessions Judge, Solan, District Shimla, H.P., in Sessions Trial No.20­S/7 of 1998 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, (in short 'NDPS Act'), acquitting the alleged respondent­accused. 2. The prosecution case is that on 5.1.1998, Sub Inspector Parkash Chand, Police Station, Sadar, Shimla was present at the Ridge, got an information that one person present at bus­stand Lakkar Bazar, carrying a bag containing some contraband goods, after getting such information, Sub Inspector, associated two independent witnesses, namely, Shiv 2 Kumar and Vivek Aggarwal and apprehended the accused­ respondent after apprising him that he is to be searched and on agreeing, the bag, being carried by the accused, was searched, wherein 1 kg. 35 grams of charas, wrapped in two polythene bags, was recovered. Out of the recovered charas, two samples each weighting 25 grams, were taken and sealed and bulk charas was sealed in separate parcel with seal impression 'B'. The sample was sent for chemical examination to Kandaghat and accordingly report Ex.PJ was given. 3. After investigation, respondent­accused charged for the offence under Section 20 of the 'NDPS Act'. In order to prove its case, the prosecution has examined as many as 7 prosecution witnesses, whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case and shown his innocence. 4. PW.1 Shiv Kumar has stated that the police people surrounded the accused and he and his friend Vivek Aggarwal, had seen only a plastic bag containing some stuff said to have been recovered from the accused. The statement of PW.1 contradicts the testimony of PW.7 Parkash Chand, Sub Inspector and PW.6 N.S. Paul, Dy.S.P., the search of the accused was made in presence of independent witnesses Vivek Aggarwal and Shiv Kumar and a plastic bag containing charas was recovered from bag Ex.P2 being carried by the accused­respondent. PW.3 Vivek Aggarwal and PW.4 Shiv Kumar have no doubt stated in their examination­in­chief that the accused was apprehended by the police at bus­stand Rivoli Lakkar Bazar and the bag containing 3 charas, on weighment was found to be 1 kg. 350 grams, was recovered from the possession of the accused, but in cross­ examination they have denied the prosecution version. PW.4 Shiv Kumar has stated that after apprehending the accused at the bus­stand, the police people took him to the police station around 2.00 P.M. and that he and his friend Vivek Aggarwal went to the police station an hour later, as such, two independent witnesses have not supported the case of the prosecution to the extent they were expected to support. 5. PW.6 N.S. Paul and PW.7 Parkash Chand, Sub Inspector, have endeavoured to support the prosecution case, but as pointed above they were contradicted in material particulars by PW.3 Vivek Aggarwal and PW.4 Shiv Kumar. We also notice that the link evidence led by the prosecution to connect the report of the chemical examiner with one of the samples of the stuff allegedly recovered from the accused is also doubtful. PW.7 Parkash Chand Sub Inspector has stated that he had deposited the case property with the Station House Officer, namely, PW.2 Balak Ram Inspector. PW.2 Balak Ram has stated that the case property was deposited with him and that later on he sent one of the two samples to the chemical examiner, Kandaghat, through Constable Bhim Chand. But Bhim Chand examined as PW.5 has deposed that the sample alongwith the road certificate for being carried to the Chemical Laboratory Kandaghat has been entrusted to him by MHC Paramjit, as such, it is doubtful that if the alleged charas which was being carried by Constable Bhim Chand to the chemical examiner, 4 Kandaghat, pertains to the stuff allegedly recovered from the accused or not. Further, the report of the chemical examiner, Ex.PJ, shows that the seal impression on the sample tallied with the specimen seal impressions which were received separately, however, no evidence was led that the specimen impressions of the seals affixed on the sample parcels had been sent to the chemical examiner. 6. PW.2 Balak Ram, Station House Officer, has nowhere stated that he had sent the specimen impression of the seal to the chemical examiner either through constable Bhim Chand PW.5, or by any other mode of transmission. PW.5 Bhim Chand also does not say that he had carried with him anything other than sample parcels and the road certificate. Such aspect shows that either the chemical examiner has certified that the specimen impressions of the seal received separately tallied with the impression of the seal on the sample in a mechanical manner. Doubt is created that Ex.PJ does not pertain to the sample of the stuff allegedly recovered from the accused­ respondent. 7. In view of the contradictions being noticed from the testimony of PW.3 Vivek Aggarwal and PW.4 Shiv Kumar, the link of events is missing and learned Sessions Judge has carefully analyzed the prosecution witnesses and has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings given by learned Sessions 5 Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 8. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge September 16, 2010 (V.K. Sharma) (Purohit) Judge