IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 83/2001 Date of decision: 31.12. 2010 State of H.P. …..Appellant Versus Prem Pal ……Respondent Coram: The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General, with Mr. Rajinider Dogra, Addl. Advocate General. For the respondent: Mr. H.K. Paul, Advocate. Surinder Singh, J. (Oral) The present appeal has been directed by the State against the acquittal of the respondent in Sessions trial No. 10/2000 decided on 11.9.2000, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ‘the Act’ for allegedly keeping in possession 700 grams of charas. 2. Heard and gone through the record of the case. 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - 3. In short, prosecution story is that PW7 ASI Dandu Ram of Police Post Sangani was summoned by the SHO Police Station Kihar District Chamba in connection with precautionary measures to be taken during the republic day. Pursuant to the instructions imparted to him, he was present at Chakoli Bridge with constables Amin Chand, Kishori Lal (PW2) and Bajir Muhammad. They were checking the vehicular traffic and passers-by. In that process they noticed the respondent coming on foot who, on sighting the police party, got scared and tried to flee-away. At a distance of about 100 yards, he was apprehended by the Police. His identity was asked and was brought near the official vehicle parked by the police party. They suspected some contraband in his possession. PW7 aforesaid gave him an option to satisfy the provisions of Section 50 of the Act whether he wanted to be searched before a Magistrate or a Gazetted Officer. In response to that, respondent, in the presence of Onkar Singh (PW1) and Yakub Mohammad, gave his consent Ext. PG to be searched by the police party present there. ASI Dandu Ram rendered himself to be searched by the respondent but nothing incriminating was found with him. Thereafter - 3 - personal search of the respondent was conducted. The Said police officer recovered one packet of polythene from inside the jacket of the respondent to which he was wearing. It contained charas in the shape of sticks (battis) and small balls (Gola). PW Kishori Lal was sent for arranging scale and weight. On weighing, it was found to be 700 grams out of which two samples of 25 grams each were separated and sealed with seal impression producing the impression of English letter ‘K’ and remaining bulk was also sealed with the same seal. Seal after its use was handed over to PW Onkar Singh. The case property was taken into possession vide memo Ext. PH. Its copy was handed over to the respondent. Thereafter respondent was arrested and grounds of arrest Ext. PJ were informed to him. 4. Ruka Ext. PE was sent to the Police Station concerned for lodging the FIR, on the basis of which FIR Ext. PD was registered. 5. Site plan Ext. PN was prepared on the spot. A special report, copy whereof is Ext. PC, was sent to the Superintendent of Police , Chamba within the stipulated period. 6. The case property was produced before SHO PW 5 Rainder Sharma who re-sealed it with seal - 4 - producing the impression of English letter ‘D’. Re- sealing memo Ext. PE was prepared to this effect. Case property was deposited with PW4 MHC Desh Raj for its deposit in the Malkhana. 7. On 26.1.2000, one sample parcel was handed over to LHC Kishori Lal for being taken to C.T.L. Kandaghat vide R.C. No. 110/2000. After its deposit in the Laboratory on 27.1.2000, he handed over the receipt back to the MHC. The sample parcel was examined in the Laboratory vide report Ext. PF. It tested positive for charas and contained resin to the extent of 30.6% W.W. of Indian Hemp which on weighing tested beam alkaline cystolythic hair and in the opinion of the chemical examiner, contents of the sample parcel were that of charas. 8. After completing the investigation, challan was presented in the Court for the trial of the respondent. 9. Respondent was accordingly charge sheeted for the offence aforesaid, to which he pleaded not guilty and claim trial. 10. To prove its case, prosecution examined its witnesses and the respondent was also examined under Section 313 of the code of Criminal Procedure. His case was denial simplicitor. However, - 5 - he pleaded innocence. According to him, he was summoned to the Police station and was made to sign certain documents under pressure/threat. 11. To prove his version, when called upon to enter into his defence, no evidence in defence was led by him. 12. At the end of the trial, respondent was acquitted by the learned trial court as the evidence of the prosecution was found to be contradictory and not inspiring confidence. Further the independent witness PW1 Onkar Singh turned hostile and another Yakub Mohammad was not examined. 13. We have re-appraised the evidence on record. The material defect which crept in the instant case and is fatal to the prosecution, is that PW2 Kishori Lal stated that when respondent was apprehended and the alleged contraband was recovered from him, as stated above, the samples were separated by ASI Dandu Ram and these were sealed with seal producing the impression of English letter ‘A’. Whereas prosecution story is that the case property was sealed with seal producing the impression of English letter ‘K’. He was not contradicted with the said fact at all. - 6 - 14. Further, neither ASI Dandu Ram nor constable Kishori Lal stated that after sealing the case property on the spot, its impression was taken separately either on the piece of cloth or on the paper. Even the Investigating Officer did not say anywhere about the filling of the NCB forms in triplicate on the spot. Re-sealing memo though states about the receiving of the sample of seals on ‘K’ by PW5 Rajinder Singh SHO but when he re- sealed the property, he did not say that he also took the seal impression separately on a piece of cloth or paper. So much so, re-sealing memo Ext. PE although mentions about the case property, but it is silent so far as the receipt of the NCB forms is concerned. Even NCB forms, out of which one is Ext. PF does not contain facsimiles of the seal and PW4 MHC Desh Raj also did not say having deposited the sample of seal used by the Investigating Officer as also by PW5 SHO Rajinder Singh at the time of re-sealing. 15. Also PW2 LHC Kishori Lal has not made any reference with respect to handing over of the sample of seals to him along with sample parcel. Neither the Malkhana Register nor its extract has been produced and proved on record as to what - 7 - case property was deposited with the MHC by the Investigating Officer or the SHO nor the copy of the R.C. has been produced and proved in accordance with law to substantiate the version of the prosecution. It is also not understood when the sample parcel was received in the laboratory with which its seal was tallied by the Chemical Analyst or any official of the Laboratory. Thus, in these circumstances, report of the analysis cannot be connected with the contraband alleged to have been recovered from the possession of the respondent. 16. Further, PW1 OnKar Singh did not support the case of the prosecution. He was confronted with his statement recorded under Section 161 of the Code of Criminal Procedure. He denied every part thereof so far as the prosecution case is concerned. Further, this witness is a stock witness and admitted having appeared in about 20 cases registered in Police Station Kihar. According to him, he used to sign the papers at the instance of the local police whenever required to do so. He had gone to the extent of saying that he had seen the respondent for the first time during the trial. He also admitted that another witness Yakub Mohammad (not examined) - 8 - was also a stock witness of the Police having appeared in about 20 cases of the concerned police Station. Significantly, he also stated that the Police had given the ‘certificate of recommendation’ to Yakub Mohammad. He is alleged to have shown one person belonging to Punjab in the Police Station when he was called by the Police who was not the present one he saw during the trial of the case. 17. In view of the above stated position, we do not find anything which could impel us to convert the acquittal into conviction as argued by the learned Senior Additional Advocate General with respect to the acquittal of the respondent which requires no interference. As such the appeal is without any merit, hence dismissed. Respondent is discharged of his bail bonds entered upon by him at any stage during the proceedings of this case. (R.B Misra), Judge December 31, 2010 (Surinder Singh), (cm) Judge.