IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 167 of 2000. Date of decision: 12.7.2010 ________________________________________________________ State of H.P. Appellant Versus Surender Kumar Verma Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting ? No For the appellant: Sh.Rajesh Mandhotra, Deputy Advocate General. For the respondent: Sh.B.C.Verma, Advocate. _____________________________________________________ Deepak Gupta, J.(Oral). This appeal by the State is directed against the judgment dated 28.10.1999 delivered by the learned Special Judge, Solan in Sessions Case No.4-S/7 of 1999 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter, referred to as the ‘Act’). 2. The prosecution case, in brief, is that on 25.11.1998 PW/3 Inspector Roshan Lal was on patrolling 2 duty at Lower Bazar, Solan with Constable Megh Ram, and some other police officials. He received secret information that Surinder Kumar who runs a shop in Ganj Bazar, Solan selling cigarettes also indulges in the sale of charas. He went to the Police Post and made a report in the Rapat Rojnamcha (Ext.PW2/A) and sent the same to the Superintendent of Police, Solan. He thereafter formed a raiding party and associated therewith Surender Kumar and Narender Kumar as independent witnesses. When this police party reached Ganj Bazar, Solan, the accused tried to run away. The accused was over- powered by the police. Thereafter, PW/3 asked the accused whether he wanted to be searched before a Magistrate or Gazetted Officer or by the police vide memo Ext.PW1/B. The accused opted to be searched before the police. The accused was searched in the presence of the independent witnesses. In the left pocket of the pant of the accused, one polythene bag containing charas was recovered. The polythene bag was seized by the police and on checking, it was found to contain charas in the shape of ‘Battis’. On weighing, the charas was found to be 17 grams. Two samples of 2½ grams each were taken out from the charas. The bulk 3 charas and samples were sealed in separate parcels and the same were taken into possession vide recovery memo Ext.PW1/A. Ruqua, Ex.PW3/B was prepared and sent to Police Station, Solan for registration of the FIR. Thereafter, PW/3 handed over the investigation to ASI Chaman Lal alongwith the case property. 3. Chaman Lal, ASI appeared as PW/8. According to him, on 25.11.1998 he went to the spot and took over the investigation from PW/3, Inspector Roshan Lal. He prepared the site plan, Ext.PW8/A at the spot and recorded the statements of the witnesses. Thereafter, the accused was apprised of the commission of the offence and was arrested. He prepared special report, Ext.PW2/B and sent the same to the Superintendent of Police through Constable Hardev Singh. He also received the report of the Chemical Examiner, PW8/C and thereafter, the case file was handed over to Sh.D.D.Sharma, SHO (PW/7). On the basis of this evidence, challan was filed against the accused who pleaded not guilty. After trial, the accused was acquitted by the learned Trial Court. Hence the present appeal by the State. 4 4. ASI Chaman Lal admitted that the handwriting of the site plan is in the hand of PW/3 Roshan lal. This witness is totally silent as to what he did with the case property. In fact, neither PW/3 nor PW/8 stated, what was the seal which they affixed on the case property? No doubt, Babu Ram, MHC (PW/5) stated that on 25.11.1998, PW/7 deposited the case property with him and according to PW/7, PW/8 handed over the case property to him on the evening of 25.11.1998 but as already mentioned above, PW/8 is totally silent in this aspect. Admittedly the sample was sent to CTL, Kandhghat for chemical analysis on 28.12.1998, i.e., after one month and three days of the alleged recovery. PW/5 did not bring the Malkhana register. The road certificate has also not been produced. There is nothing on record to show where the case property remained from 25.11.1998 till 28.12.1998. The report of the Chemical Examiner, C.T.L., Kandaghat (Ext.PW8/C) makes out totally different story. According to this report, two samples were sealed with seal ‘X’ and resealed with seal ‘T’. This has not been stated by any of the witnesses. The resin content is only 27.97% and if this is taken into consideration, the contraband recovered actually works out to less than 5 5 grams. The independent witnesses did not support the prosecution case. They denied that any recovery had been made in their presence. Before parting with the case, we place on record our appreciation for the valuable assistance rendered by Sh.B.C.Verma, Advocate to this Court. In view of the above discussion, we find no merit in the appeal which is accordingly rejected. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge July 12, 2010 (Sanjay Karol) (m) Judge