1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No 695/2002 Decided on: September 20, 2011 State of H.P. …Appellant. VERSUS Harjinder Singh ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge Whether approved for reporting?1 For the Appellant: Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Puneet Rajta, Advocate (Amicus Curiae) R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 3.8.2002 passed by learned Sessions Judge, Bilaspur, HP in Sessions Trial No. 17 of 2001 thereby acquitting the respondent / accused for the offence under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short ‘NDPS Act’). 2. The prosecution case, in brief, is that the accused/respondent was apprehended on 16/17.7.2001 by the police team consisting of S.I. Desh Raj (PW-9) along with H.C. Whether the reporters of the local papers maybe allowed to see the judgment? 2 Diwan Chand (PW-8) and Constable Rakesh Kumar. The respondent/accused was taken out from Bus No. HP-42-792 belonging to H.R.T.C, which was running from Udaipur to Delhi. On checking, it was found that 50 passengers were traveling in the bus and the accused/respondent was found carrying plastic bag near his legs while sitting on seat No. 16. On search ‘Charas’, wrapped in a black coloured cloth, was recovered from the bag, which on weighment was found 1 Kg 900 grams. Out of which two samples of 25 grams each were taken, put into a parcel and sealed with seal impression ‘T’. The remaining ‘Charas’ was put into the same shawl, cloth and plastic cover were wrapped in a cloth parcel and sealed with seal impression ‘T’. The seal impression was taken separately as Ext PE. Seizure Memo Ext PA was prepared. Rukka Ext PG was sent to Police Station for registration of the case. Sample of ‘Charas was sent to Chemical Examiner and after investigation, the accused/respondent was charged for the aforesaid offence. 3. In order to prove its case, prosecution has examined as many as nine prosecution witnesses, whereas through his statement under Section 313 Cr.PC, accused person denied the prosecution case. 4. On the scrutiny of the prosecution witnesses and material on record, we notice that Manoj Kumar and Manpreet Singh including driver Kanshi Ram were present on the spot, whereas the driver Kanshi Ram was not examined. Only 3 conductor Roop singh (PW-1) and Manpreet Singh (PW-7) were produced. PW-1 stated that at the relevant time, he was working as conductor with the said bus, which was being driven by Kanshi Ram, driver and the said bus was going from Udaipur to Delhi. As per testimony of PW-1, accused/respondent was sitting on seat No. 16 and one polythene envelope was lying near the legs of accused containing one black coloured shawl and black cloth, from which ‘Charas’ in the form of ‘Sticks’ wrapped in the clothes was recovered. However, PW-1, in cross- examination has stated that when the police party entered the bus, he was standing near the window and watching the search made by the police and during search, driver of the bus left his seat and came out of the bus. PW-1 has also stated that the police came out of the bus and the envelope was in the hands of S.I. At that time, accused/respondent was saying that he is being falsely implicated. 5. Another independent witness, namely Manpreet Singh (PW-7) has not supported the prosecution case at all and, as such, was declared hostile. PW-1 has stated in his cross- examination that incriminating articles were not recovered form the accused as the same were recovered from the floor of the bus near his legs. PW-1 has also stated in cross-examination that the accused/respondent was not holding polythene envelope, as the same was lying on the floor of the bus. (PW-2) Inspector Siri Ram has stated that in reference to Rukka Ext PG, FIR Ext PH 4 was recorded in the police station which was signed by PW-2 and the case file was handed over to S.I. Des Raj through constable Diwan Chand. On 17.7.2001, S.I. Des Raj handed over two sealed sample of ‘Charas’ along with remaining ‘Charas’ with seal impression ‘T’ for resealing, which was resealed with impression ‘N’ by PW-2 and thereafter the same was handed over to MHC after re-sealing. (PW-3) H.C. Kuldeep Singh has stated that he received three seal parcels sealed with seal impression ‘N’, which was handed over to him by Inspector/ SHO Siri Ram along with sample of seal ‘T’. PW-3 further stated that on 19.7.2001, he handed over one sample of ‘Charas’ along with sample of seals to Constable Bharat Bhushan vide R.C. No. 55/2001 for delivering the same to CTL, Kandaghat, which accordingly was delivered and receipt was handed over to PW-3. 6. (PW-4) Constable Bharat Bhushan, on the other hand, has stated that on 19.7.2001 MHC Kuldeep Singh has handed over him one sealed parcel, i.e. sample of ‘Charas’ duly sealed with seal impression ‘N’ along with sample of seals ‘N’ and ‘T’ for delivering the same to C.T.L. Kandaghat along with other documents in the morning at about 7-8 AM on 19.7.2001. PW-4 handed over the sample in CTL Kandaghat at about 3.4 PM on the same day and receipt in respect of the same was handed over to MHC on the next day i.e. on 20.7.2001 at about 3.-4 PM. (PW-5) H.C. Chet Singh received a 5 special report in reference to FIR No. 204/2001 dated 17.7.2001 while working as Reader to S.P. Bilaspur. (PW-6) SI/SHO Shamsher Singh prepared the challan on receipt of chemical report. (PW-7) Manpreet Singh, an independent witness, however, has ultimately not supported the prosecution case and has been declared hostile. PW-7 has stated that all the passengers, traveling in the said bus, were interrogated by the police with regard to the ownership of the recovered bag, but nobody claimed ownership of the bag. PW-7 was not sure as to whether the bag belonged to the accused. PW-7 has further stated that the bag in question was recovered below the front seat on the floor of the bus where the accused was sitting. As per testimony of PW-7 made in the cross-examination, accused was saying that he has been falsely been implicated. (PW-8) HHC Diwan Chand, in his endeavour to support the prosecution case, has stated that witnesses Manoj and Manpreet were sitting with the accused when recovery of contraband good was made. PW-8 arranged weight and measuring machine and from the nearby shop of Kashmir Singh, bring weighing machine and weights of 2 Kg, 1 KG, 500 grams, 200 grams, 100 grams and 50 grams and on weighing the recovered ‘Charas’, it was found 1 Kg 900 grams. Two samples of 25 grams each were taken out separately. Samples and remaining ‘Charas’ put in separate parcels and sealed with seal impression ‘T’. PW-8 has further stated that there were about 50 passengers in the 6 bus at the time of recovery. (PW-9) S.I. Desh Raj has stated that after fulfilling the formalities, the case property along with samples were handed over to SHO Siri Ram for re-sealing after filling the ‘NCB Form’/ Ext PO which was signed by Inspector/SHO after resealing. PW-9 has, however, denied that all the proceedings were conducted in the police station and has also denied that the incriminating article was recovered from the floor of the bus below the front seat occupied by the accused. 7. We find that out of 50 passengers travelling in the bus, no independent witness has come forward to support the prosecution case. The passengers sitting on seat No. 14 and 15 have also not come forward to support the prosecution case. The conductor of the bus in question has turned hostile. Prosecution has failed to prove that the incriminating article was recovered from the conscious and exclusive possession of the accused/respondent. ‘NCB Form’ was said to be prepared on the spot, whereas, on perusal of ‘NCB Form’, it does not appear that the same was prepared on the spot. No facsimile seals were put on the ‘NCB Form’. In view of the testimony of PW-2, he has re-sealed the samples with seal impression ‘N’ and in view of the testimony of PW-3 HC Kuldeep Singh, he handed over one sample of ‘Charas’ along with sample of seals to Bharat Bhushan vide RC No. 55/2001 on 19.7.2001 and in view of the testimony of PW-4 Constable Bharat Bhushan, he 7 deposited the samples to CTL, Kandaghat on 19.7.2001 between 3-4 PM, whereas ‘NCB Form’ certificate issued by Chemical Examiner reveal that the sample was received in the chemical laboratory on 18.7.2001. Therefore, the testimonies of PW-3 and PW-4 cannot be believed, as these create doubt. The prosecution witnesses are not sufficient to prove the prosecution case beyond reasonable doubt. 8. On analysis of the prosecution witnesses and material on record, learned Sessions Judge has rightly arrived at finding that the prosecution has not been able to prove its case beyond reasonable doubt. In our considered view, the prosecution has failed to bring home the guilt to the accused Therefore, we find no scope for interference in the impugned judgment. The criminal appeal, being devoid of merit, is accordingly dismissed. 9. Bail bonds, furnished by the accused/respondent, are hereby discharged. 10. We appreciate the assistance rendered by Mr. Puneet Rajta, as Amicus Curiae and place on record the words of admiration for him. ( R.B.Misra ), J. 20th September, 2011 (Surinder Singh), J. (sl) 8