1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 297 of 1996 Reserved on: March 3, 2010 Date of Decision : March 16, 2010 State of H.P. …Appellant. Versus: Sohan Singh …Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Vivek Thakur, Addl. A.G. with Mr. R. M. Bisht, Dy. A. G. For the respondent : Mr. Malay Kaushal, Advocate vice Ms. Devyani Sharma, Advocate Sanjay Karol, J. The present appeal filed under Section 378 of the Code of Criminal Procedure is directed against the judgment of acquittal dated 26.10.1995 passed by the learned Sessions Judge, Sirmaur District at Nahan, H.P. in Sessions Trial No. 9-N/7 of 1995, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’). 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 It is the case of the prosecution that on 22.10.1994 Head Constable Kalyan Singh (PW-10) accompanied by H.C. Mohinder Singh, Pradhan - Vijay Singh (PW-2), Shri Bishan Singh (PW-9) and other police officials were present at Gangtoli bridge, falling within the jurisdiction of Police Station, Renukaji. At about 5.30 P.M. accused Sohan Singh who was carrying a bag on his shoulder came there. PW-10 suspected the accused to have carried some contraband substance, hence he expressed his intention of searching the accused. The accused was asked as to whether he would like himself to be searched by PW-10 or Gazetted Officer or the Magistrate. Accused offered himself to be searched by a Magistrate and his statement (Ext.PC) to the said effect was recorded. Thereafter PW-10 accompanied by PW-2, PW-9 and other police officials, took the accused to the residence of Shri Devender Singh Kanwar (PW-1), Naib Tehsildar at Shilai. There the accused was searched by PW-1 in the presence of PW-2 & PW-9. He was found to be possessed with two packets of charas (Ext.P-2 & Ext.P- 3), which on weighing was found to be of 500 gms. each. The contraband substance was recovered from the bag (Ext. P-1) of the accused. Two samples of 50 gms. each were separately drawn. Both the sample packets were sealed with seal impression ‘J’ and the remaining packets of charas (Ext.P-2 & Ext.P-3) were placed in the bag which was further sealed with seal impression ‘J’. The packets were taken into possession vide seizure memo Ext.PA in the presence of PW-2 & PW-9. PW-10 sent rukka (Ext.PD) to SHO, 3 Police Station, Renukaji and FIR (Ext.PE) dated 23.10.1994 under Section 20 of the Act was registered. The samples were sent for chemical analysis and with the completion of the investigation, challan was presented in the Court for trial. The accused was charged for an offence punishable under Section 20 of the Act. He did not plead guilty and claimed trial. In all, the prosecution examined 10 witnesses. In terms of the impugned judgment the Court below acquitted the accused of the charged offence. As per the report (Ext. PP) of the Assistant Chemical Examiner, the samples Ext.P-2 & Ext.P-3 sent for analysis did contain resin content to the extent of 33.70%. The question, however, is as to whether the accused can be said to be guilty of the charged offence. In our considered view, the prosecution witnesses have not only contradicted themselves but have also materially contradicted each other rendering the veracity of their statements to be doubtful. The guilt of the accused, in relation to the charged offence cannot be said to be born out from the record. On 22.10.1994 at about 5.30 p.m. the accused is alleged to have met PW-10, PW-2, PW-9 and other persons near Gangtoli bridge. The accused is stated to have expressed his desire to be searched by the Executive Magistrate in terms of his alleged statement (Ext.PC), which according to PW-10 was recorded at 4 Gangtoli bridge and thereafter the accused was taken to the Naib Tehsildar stationed at Shilai. It has come on record that Shilai is at a distance of 13 kms. from Gangtoli bridge. No doubt two independent witnesses, PW-2 and PW-9 have deposed that the accused made the statement in their presence but, have later contradicted themselves. According to PW-9, Ext.PC was signed by him along with PW-2 at the spot which fact is not corroborated by PW-2. In fact he is categorical in deposing that “no statement like Ext.PC of accused was drawn or written at Gangtoli Pul. Ext.PC was drawn in the residence of Naib Tehsildar Devender Singh”. Further it is the version of PW-10 that Ext.PC was attested by PW-1. Whereas according to PW-1, the police procured his signatures on 6-7 papers on the day following the date of the alleged offence. He does not specifically state that Ext.PC was attested by him. In the absence of clear, cogent and reliable material, it cannot be said that Ext.PC was in fact prepared at Gangtoli bridge rendering the prosecution story to be doubtful, if not false. Importantly the manner in which the search was carried out casts serious doubt about the prosecution case as a whole. It cannot be said with certainty that in fact the contraband was recovered from the accused. Admittedly, search was carried out by PW-1. Though it may not be fatal, but he has admitted not to have offered himself for search or having been searched by the police officials before 5 carrying out the search on the accused by him. Similar is the case with the independent witnesses. That apart, On 22.10.1994, at about 7.30 p.m. the search was carried out by PW-1 in the verandah of the first floor of his double storeyed house. PW-1 has admitted to have disclosed from the first storey of his house to PW-2 that the contraband in the form of Charas had been recovered from the accused. Even according to PW-2 search was not carried out in his presence as he remained outside the residence of PW-1 and the samples were also not extracted in his presence. Importantly, according to PW-9 there was no light at the time when the search was conducted. In fact it was done in the light of a candle. He admitted to be standing at a distance of about 24 ft. away from the house of PW-1. Neither the contraband nor the sealed packets were shown to him. PW-1 came out and disclosed to him that two packets of 500 gms. of Charas were found in the bag of the accused out of which sample of 50 gms. each was taken. Further statement of PW-1 to the effect that the search was carried out at about 7.30 p.m. stands contradicted by PW-2 according to whom, the search was carried out at about 9 p.m. Be that as it may be, the fact of the matter is that two independent witnesses were kept away at a distance and were not even allowed to come up to the verandah of the second floor of the house of PW-1. Undisputedly the search was carried out not in broad day light but in the light of a candle. 6 PW-1 even does not state the date of search conducted by him. He further admits to have signed the seizure memo Ext.PA in the morning after the date of the search. Thus his statement does not inspire confidence. It is the case of the prosecution that accused was brought to Shillai along with other police officials. They have not been examined. There is no explanation for the same. They could have thrown true light on the events which took place. It cannot be said with certainty that the contraband substance was in fact recovered from the accused alone. The prosecution case that the accused was carrying the contraband is further rendered doubtful from the statement of PW- 2, as, according to him, he did not accompany the accused alongwith the police from Gangtoli bridge upto Shillai. The police and the accused came by bus whereas he came by truck. Why PW- 2, an independent witness was not made to accompany the accused has not been explained. The possibility of someone putting the contraband substance in the bag of the accused cannot be ruled out. There are material contradictions in the statements of the witnesses rendering their depositions to be unreliable and untrustworthy of reliance. According to the Investigating Officer (PW-10), the witnesses were present in the Varandah at the time of search, whereas as per the version of PW-1, PW-2 and PW-9 they were not there. 7 According to PW-1, Ext.PA was signed in the presence of PW-2, which version he himself contradicted by subsequently deposing that the same was signed the next morning. PW-2 who was declared hostile, deposed that the sample was not extracted in his presence whereas PW-1 specifically deposed to the contrary. PW-2 contradicted himself by firstly stating that Ext.PC was drawn in his presence but subsequently stating that the same was not done. This is the entire evidence of the prosecution. Taking into account the entire material on record, it cannot be said that the prosecution has been able to prove its case. The trial Court has rightly come to the conclusion while acquitting the accused. There is no merit in the appeal. Hence, the appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Deepak Gupta) Judge. 16th March, 2010 (Sanjay Karol) (Rana/C) Judge.