IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 159 of 2004 Date of Decision: 6th January, 2011 __________________________________________________________ State of H.P. ….Appellant. Versus Biplab Biswas ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. ___________________________________________________________ For the Appellant: Mr. P.K. Sharma, Addl. Advocate General, with Ms. Shubh Mahajan, Deputy Advocate General. For the Respondent: Mr. Deepak Kaushal, Adovcate. __________________________________________________________________ Dev Darshan Sud, J (oral). The State is aggrieved by the judgment passed by the learned Chief Judicial Magistrate, Sirmaur District at Nahan acquitting the accused for offences under Sections 18-A and 18 (c) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the Act). 2. In brief, the allegation against the respondent was that he had in possession for sale and distribution drugs for 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 which he had no valid licence. The learned Court, on the evidence acquitted the accused primarily on the ground that PW1 Ami Chand, who was a member of the raiding party has stated in clear terms that he is peon in the office of C.M.O. Nahan and his sttement was not recorded by the police under Section 161 Cr.P.C. and he did not sign the seizure memo Ext.PW5/B. The next witness was Arjun Singh, who was supposed to be a member of the Gram Panchayat, and purportedly joined the raid. He also resiled from his statement and admitted in his cross examination that no search was conducted in his presence. 3. The learned trial Court, considered the evidence of these two witnesses and the contradictions which go to the very root of the case. Even the evidence of police namely PW4 H.C. Mast Ram was found unworthy of credence as it did not substantiate the case of prosecution. 4. Learned Additional Advocate General submits that the respondent was selling drugs for which he had no valid licence and that the statement of respondent under Section 313 of the Code of Criminal Procedure is vague and does not in any manner substantial the defence. 5. Before turning to that aspect of the case, all that need to say is that before adverting to the statement under Section 313 of Cr.P.C., it is the evidence of prosecution which requires consideration as to whether the raid and subsequent seizure has been proved/substantiated by the evidence on record. What I find from the evidence is that the star witnesses of the prosecution have denied their association with the seizure. So much so if their statements are read as a whole their very 3 presence on the spot is doubtful. In these circumstances, I do not find any merit in this appeal, which is accordingly dismissed. Needless to add that when two views against the acquittal of accused are possible, the view favours the accused is to be preferred by the Court. The evidence does not at all establish the commission of offence against the respondent. Bail bonds furnished by the respondent are discharged. January 06, 2011 (Dev Darshan Sud), ms Judge 4