1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 483 of 1997 Decided on September 10, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Deen Mohd. ...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. Rajinder Dogra, Additional Advocate General, with Mr. Anil Jaswal, Deputy Advocate General. For the respondent: Ms. Vidushi Sharma, Amicus Curaie. Justice R.B. Misra,J. (Oral) Ms. Vidushi Sharma, has been requested to assist this Court as amicus curaie, on behalf of the respondent- accused, and she has agreed to assist this Court. 2. The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 8.8.1997 passed by Learned Sessions Judge, Chamba Division, Chamba, H.P., in Sessions Case No. 15 of 1997, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act''), acquitting the alleged respondent/accused in reference to FIR No.181/1996 dated 1.11.1996. 2 3. The prosecution case, is that, on 1.11.1996 at about 4.15 P.M., Shri Rajinder Kumar, SHO, Police Station, Dalhousie, was at Tunuhatti alongwith ASI Jagjit Singh, Head Constables Budhi Parkash and Krishan Gopal and Constables Chatter Singh and Pawan Kumar, and observed that accused-respondent was coming on foot from Nainikhad side. At that time, accused- respondent was carrying a bag on his left shoulder, on seeing the police party, accused-respondent tried to run away, however, he was apprehended. On suspicion, Rajinder Kumar SHO intercepted the accused-respondent and enquired his name. Thereafter, SHO Rajinder Kumar searched the bag of the accused-respondent, being carried by him on his left shoulder, after apprising him that he has a right to be searched by a Magistrate or Gazetted Officer in case he did not want to be searched by the police party. Accused-respondent gave his consent for search by SHO Rajinder Kumar, after that search of the bag was made and charas was found inside the bag. The charas was weighed and the same was found 2Kgs.890 grams. SHO Rajinder Kumar had taken one sample of 10 grams from the said charas. After that, the sample of charas and the remaining charas were put into two separate parcels and these parcels were sealed with seal impression 'JC'. Thereafter, the sample of charas alongwith seal was sent to the chemical examiner. 4. After investigation, the accused was arrested and charged for the offence under Section 20 of 'NDPS Act'. In order to prove its case, the prosecution has examined as many as 8 3 prosecution witnesses. Whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 5. On behalf of the prosecution, PW.1 ASI Narinder Kumar, PW.2 Head Constable Chatter Singh, PW.3 Constable Kuldeep Chand, PW.4 LHC Govind Ram, PW.5 Head Constable Mohinder Pal, PW.6 ASI Anjana Sharma, PW.7 Kanhaiya Lal, independent witness and PW.8 Rajinder Kumar, Investigating Officer, were examined. Apart from this, the prosecution has placed on record various documents which are Exts.PA to PK. Ex.PA is the Rukka, while Ex.PB is the FIR. Ex.PD is the special report, while Ex.PE is the consent memo. Further, Ex.PF is the recovery memo regarding the grounds of arrest. Ex.PH is the site plan, while Ex.PJ is the sample of seal. Ex.PC is the copy of wireless, while Ex.PK is the report of the chemical examiner. Furthermore, during the trial, the prosecution has also produced sealed parcel of charas which is Ex.P1. 6. On scrutiny of the prosecution witnesses and materials on record, we notice that Kanhaiya Lal (PW.7) and SHO Rajinder Kumar (PW.8) were the main witnesses in whose presence the accused-respondent was searched and recovery of contraband good was made. PW.7 Kanhaiya Lal has stated that he has been working as forest guard at Forest Check Post, Tunuhatti since 23.5.1996 and at the the relevant time, when he was standing in front of Forest Check Post, Tunuhatti, he saw the accused-respondent coming from Banikhet side on foot and at that time the accused was carrying a bag on his left shoulder. He 4 has further stated that the police caught hold of the accused- respondent. PW.7 has also stated that Sh. Gauri Ram, who is a shopkeeper at Tunuhatti, was also present when the accused was apprehended. Thereafter, SHO searched the bag being carried by the accused-respondent and recovered charas from inside the bag. He has also stated that charas was weighed and the same was found 2 Kgs. 890 grams. He has further deposed that the SHO had taken a sample of 10 grams from the said charas and the sample of charas and the remaining charas were put in two separate parcels, which were sealed with seal 'JC'. The sample was sent for chemical examination. PW.7 has further stated in his cross-examination that the police had told the accused in his presence that they wanted to search him and the accused had replied that he was ready to be searched by the police or by any other officer. PW.7 has further stated that police had conducted the search of the accused inside the police post which is behind the forest check post. PW.7 has specifically stated that the proceedings regarding recovery of charas continued for half an hour and during this period he remained standing outside the forest check post, which is adjoining to the police post and he did not go inside the police post. He has further disclosed that Ex.PE, PF and Ex.PG were signed by him and Sh. Gauri Ram and no other person signed the same in his presence. PW.7 has denied that the accused-respondent was travelling in the bus and the police had apprehended the accused-respondent inside the bus at Tunuhatti and that the accused-respondent was not coming on 5 foot when he was apprehended by the police. 7. PW.8 Sh.Rajinder Kumar, SHO, has stated that on 1.11.1996 at about 4.15 P.M., while he was on patrolling duty at Tunuhatti, one person came on foot from Nainikhad side and he was going towards Pathankot side and on seeing the police, he tried to run away from the spot, but he was caught and on enquiry he disclosed his name Deen Mohd. PW.8 has further stated that at that time the accused-respondent was carrying a bag on his left shoulder and he told the accused-respondent that he wanted to search the bag of the accused. Thereafter, SHO Rajinder Kumar apprised the accused-respondent in presence of independent witnesses Kanahiya Lal and Gauri Ram that he was entitled to be searched before a Magistrate or a gazetted officer in case he did not want to be searched by him, on agreeing of the the accused-respondent, search was made. PW.8 has very categorically stated that seal after use was given to Sh. Kanahiya Lal. In cross-examination, PW.8 SHO Rajinder Kumar has deposed that he and other police officials had run after the accused-respondent in order to catch hold of him. He has further disclosed that the accused-respondent had not told that he did not want to be searched before a Magistrate or a gazetted officer. 8. On scrutiny of the prosecution witnesses especially testimony of PW.7 Kanahiya Lal and PW.8 SHO Rajinder Kumar, it appears that PW.7 Kanahiya Lal has stated that the police had searched the bag of the accused-respondent inside the police 6 post and he did not go inside the police post, while, PW.8 SHO Rajinder Kumar does not state that the search was conducted inside the police post. Apparently, this is a material contradiction and it strikes at the root of the case. Therefore, in the wake of this contradiction, it is difficult to believe that charas was recovered from the bag of the accused-respondent, especially when the bag, in question, has not been produced during the trial. Evidently, this contradictory evidence is not sufficient to prove the recovery of charas. Another contradiction emanating from the testimony of PW.8 SHO Rajinder Kumar that the seal after use was given Kanahiya Lal, while the contents of Rukka Ex.PA and the contents of seizure memo Ex.PF would go to show that the seal after use was given to the independent witness Gauri Ram. Whereas, Kanahiya Lal does not say that the seal after use was given to him. Evidently, this evidence of the prosecution makes the prosecution case doubtful because the possibility of tampering with the sample cannot be ruled out. PW.7 Kanahiya Lal, an independent witness, has specifically stated that the documents were signed by him and Gauri Ram and no other person had signed the same in his person, while Sh.Rajinder Kumar, SHO has categorically stated that the accused had signed these documents in presence of Sh.Kanahiya Lal, as such, material contradiction, is being noted. 9. In the present case out of two independent witnesses, only one independent witness, namely, Kanahiya Lal has been examined by the prosecution as PW.7 and another 7 witness, namely, Gauri Ram was given up as said to be won over. Out of two independent witnesses, only PW.7 Kanahiya Lal has only made the narration in support of the prosecution case, however, has not supported the prosecution case to the extent he was expected to support. 10. In view of the apparent contradictions and inconsistencies noted above, in view of the fact that except PW.8 SHO Rajinder Kumar, none of the police officials, have supported the prosecution case to the expectations of the prosecution. Therefore, in these circumstances, learned 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, the prosecution has failed to bring home the guilt to the accused and there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 11. The bail bonds furnished by the accused/respondent, are hereby discharged. 12. We place on record our words of appreciation to Ms.Vidushi Sharma, for her assistance to the Court, as an amicus curaie. (R.B. Misra) Judge September 10, 2010 (V.K. Sharma) (Purohit) Judge