1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 104 of 2002 Decided on June 20, 2011 __________________________________________________________ State of H.P. …Appellant. Versus Davinder Kumar @ Gullu ...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. For the respondent: Mr.Ramakant Sharma and Ms.Devyani Sharma, Advocates. __________________________________________________________ Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure in reference to judgment dated 25.7.2001 passed by Learned Additional Sessions Judge, Solan, H.P., in Sessions Trial No. 11-S/7 of 2000, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act'), acquitting the alleged accused/respondent, in reference to FIR No.140 of 2000. 2. The prosecution case is that the police apprehended accused Shyam Lal on 2.9.2000 while on patrol 2 duty, who disclosed that he had procured 'charas' and opium from accused Davinder Kumar, the present accused, and thereby associated PW.3, Mahinder Singh and PW.7, Prem Chand as independent witnesses. Personal search of the accused was made after apprising him whether he wanted to be searched in presence of the Magistrate or a Gazetted Officer and on his agreeing, personal search of the accused was made and 50 grams of 'charas' was recovered. Two samples of 5 grams each were taken out of the recovered 'charas' and sealed the sample 'charas'. The remaining 'charas' was also sealed separately with seal impression 'A' and handed over the same to Hari Ram and samples were sent for chemical examination to CTL Kandaghat. 3. After investigation, the accused was charged for the offence under Section 20 of the 'NDPS Act'. In order to prove its case, the prosecution examined as many as 11 prosecution witnesses, whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 4. PW.3 Sh. Mahinder Singh has stated that on 3.9.2000, police brought him from the Truck Union, Barotiwala, to the police Station and obtained his signatures. PW.3 was cross-examined at length by the prosecution but he did not support the prosecution case. 5. PW.7 Sh.Prem Chand has also made a similar statement and stated that on 3.9.2000 he was called to the 3 police station and was asked to put signatures on blank papers. In cross-examination also he did not support the prosecution case. 6. As per testimonies of PW.3 Sh.Mahinder Singh and PW.7, Sh.Prem Chand, no search or recovery of 'charas' was made in their presence. 7. PW.1 Sh.Sat Pal has stated that on 2.9.2000, while he was standing at Baddi in the market alongwith Hari Ram Pradhan, two police personnel visited Pradhan and they told PW.1 to join police officials and he went to police station and put signatures on papers without knowing what were the contents written in the papers. PW.1 Sh.Sat Pal, has however, put signatures on Exts.PW.1/C, PW.1/D, ExPW.1/E, PW.1/F, PW.1/G, PW.1/H and Ex.PW.1/K. PW.1 Sh.Sat Pal has also not supported the prosecution case. 8. PW.2 Sh.Hari Ram has stated that on 3.9.2000 he was present at his shop, situated at Baddi and ASI Salim Khan came to him and told him to visit police station and on going to police station he was told that opium was recovered from accused Davinder and PW.2 Hari Ram was told to put signatures on Ex.PW.1/A to Ex.PW.1/K. However, without going through the contents of the papers, he put his signatures on those. PW.2 Sh.Hari Ram has also not supported the prosecution case. Sh.Sat Pal (PW.1), Sh.Hari Ram (PW.2), Sh.Mahinder Singh (PW.3) and Sh.Prem Chand (PW.7), being independent witnesses, however, have not supported the 4 prosecution case at all though they were signatories of search and recovery. 9. PW.4, Constable Anil Kumar, in his endeavour to support the prosecution case has stated that on receiving a secret information that one Shyam Lal used to sell opium and 'charas', Mahinder Singh (PW.3) and Prem Chand (PW.7) were associated as independent witnesses and on search of accused Shyam Lal, 50 grams of opium was recovered from his possession. Thereafter, personal search of accused Davinder Kumar was also conducted associating Sh.Hari Ram and Sat Pal and on search, 50 grams of 'charas' was recovered from his possession. Two samples of 5 grams each were taken out of the recovered 'charas' and kept in separate match boxes and all the three parcels were sealed in separate clothes with seal impression 'A'. Samples were sent for chemical examination. PW.4 Constable Anil Kumar has not indicated that from which place weights, balance and measures were obtained and how the weighment of recovered articles was made. Further, PW.4 Constable Anil Kumar has also not indicated the exact place from where the 'charas' was recovered from the accused. 10. PW.5 MHC Neelam Kumar has stated that on 2.9.2000 three parcels were deposited with him by SI Vijay Sharma and he entered the parcels in the Malkhana register at Sr.No.376/2000. PW.5 MHC Neelam Kumar has further stated that parcels were sealed with seal impression 'A' and later on one parcel was sealed with seal impression 'H' which was re- 5 sealed and thereafter, the same was sent to Chemical Analyst through LHC Banwari Lal vide R.C. Road No.44-2000. 11. PW.6 HC Ram Nath, PW.8 Sh.Banwari Lal, PW.9 HC Yoginder Singh and PW.10 SI Vijay Kumar, in their endeavour to support the prosecution case, in their official capacity, have indicated to the extent the role assigned to them, however, their testimonies are not very material to support the prosecution case. 12. PW.11 ASI Sukh Darshan Singh, in his endeavour to support the prosecution case, has however, not indicated in his statement that from where balance, weights and measures were obtained for weighment of the recovered 'charas'. PW.11 has further stated that when he reached the spot SHO had already recovered the 'charas' from the possession of accused Shyam Lal. Accused Shyam Lal was in the custody of police agency i.e. SHO prior to the time when he was handed over to PW.11. As per testimony of PW.11, 3-4 shops were available at Jharmajri and Hari Ram an independent witness runs shop at Baddi. PW.11 has further stated that Baddi is just at a distance of 4 kms. from Jharmajri. PW.11 ASI Sukh Darshan Singh has further stated that witness Sat Pal, who resides at Kalka (Haryana), was associated in the raiding party and further stated that no one was available during night hours. 13. On analysis of the prosecution witnesses, it appears that none of the independent witnesses including PW.1, PW.2, PW.3 has supported the search and recovery of the contraband 6 goods from the conscious possession of the accused. The official as well as other prosecution witnesses have intermingled the search and recovery with that of recovery of 50 grams of opium with one accused Shyam Lal, but nothing has been emanating from the testimony of the prosecution witnesses that search was made from which place. Nothing is known as to whether the NCB form was filled up on the spot or not and how the FIR number was inserted in the NCB form (Ex.PW.10/A) which was written in the same writing and one go. Besides, the NCB form also does not contain the facsimiles of the seals used. In these circumstances, Ex.PW.10/A is also not worth-reliance. Keeping in view the inconsistencies and contradictions emanating from the prosecution witnesses, learned Additional Sessions Judge has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubt, in our considered view also, accused- respondent was not fairly apprised of his legal rights of being searched, which is mandatory requirement, provided under Section 50 of the 'NDPS Act' and in casual manner he was apprised that whether he wanted to be searched before a Magistrate or a Gazetted Officer as a result of which mandatory requirement of Section 50 of the 'NDPS Act' has not been complied with. 14. In view of the the aforesaid facts and circumstances of the case, the prosecution has failed to bring home the guilt to the accused. In our considered view, there is no scope of 7 interference in the findings given by learned Additional Sessions Judge. Accordingly, the present criminal appeal, being devoid of any merit, is dismissed. 15. The bail bonds furnished by the accused/respondent are hereby discharged. (R.B. Misra) Judge June 20, 2011 (V.K. Sharma) (Purohit) Judge