1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 50 of 2005. Date of Decision: 19-6-2008. ____________________________________________________________ Chet Ram. Appellant. Versus State of H.P. Respondent. For the appellant. : Mr. Rahul Mahajan, Advocate. . For the respondent : Sh. P.K. Sharma, Addl. Advocate General. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. _________________________________________________________ Surjit Singh, J. (oral). Appellant is aggrieved by the judgment of trial Court whereby he has been convicted for an offence, under Section 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 and sentenced to under-go rigorous imprisonment for ten years and to pay a fine of rupees one lac., in default of payment of fine, to undergo rigorous imprisonment for a further period of six months. So he has preferred the present appeal. Relevant facts are that on 30.10.2002, Station House Officer Dhabe Ram (PW8) of Police Station, Aut, accompanied by PW3 Ramesh Kumar, PW4 Constable Narinder Kumar and some other Police officials, left the Police Station for patrol duty and went towards Thalot side. Around Whether reporters of the Local papers are allowed to see the judgment? 2 5.00 P.M, when he was present at Kot Nullah, he saw the appellant- accused climbing down a foot-path to approach a link road. On seeing the Police, appellant got perplexed. He turned back and tried to run away. He was given a chase and over-powered. He was carrying a raxin pithu (haversack) which was searched. It was found to contain another bag in which there were twenty packets of charas. On weighment charas was found to be five kgs. Two samples, each weighing 25 grams, were separated. Samples and the rest of the recovered stuff were made into three separate parcels and the same were sealed with a seal that produced the impression of English letter ‘T’. One of the samples was sent to the Chemical Examiner who opined the contents to be charas, as it contained resin to the extent of 27.32%. No independent witness being available on the spot, only two police constables, namely, PW3 Ramesh Kumar and PW4 Narinder Kumar were associated to witness recovery. Prosecution examined Dhabe Ram (PW8), Ramesh Kumar (PW3) and Narinder Kumar (PW4) to prove the allegation of search and recovery of charas. All the three witnesses testified that around 5.00 P.M., when they were present near Kot Nulah, appellant came from hill side along a foot- path towards the link road and on seeing the Police, he got un-nerved and took a U-turn and tried to run away, but was over-powered and on search of the bag, which he was carrying, five kg. charas was recovered. Trial Court believed their testimony and convicted and sentenced the appellant, as aforesaid. Hearing of the matter started yesterday. During the course of the hearing, we noticed some contradictions in the testimony of Constable Ramesh Kumar (PW3), Narinder Kumar (PW4) and Dhabe Ram Sub Inspector (PW8) regarding the time when they left the Police Station as also on the point whether the sample was representative of the contents of all the twenty packets allegedly recovered from the appellant-accused. 3 Narinder Kumar (PW4) testified that the party left the Police Station at 3.00 or 4.00 P.M. but the appellant-accused claimed that he was apprehended from the house of DW2 Dharam Dass around 11.00 P.M. With a view to verifying the time when the Police Party actually left the Police Station, we directed the production of Daily Diary (Roznamcha) pertaining to the relevant date. Today, Head constable Baldev Singh from Police Station, Aut has produced the Roznamcha. Entry No.12 dated 30.10.2002 shows that the Police Party left the Police Station at 11.15 a.m. and went in the direction of the place, where the appellant was allegedly intercepted. The party included, besides the Station House Officer and the above named two constables, two Head Constables. The entry not only falsifies the statement of PW3 Ramesh Kumar that the police Party left the Police Station at 3.00 or 4.00 P.M, but also probablises to an extent the defense plea that the appellant was taken into custody at 11.00 P.M. and thereafter the bag containing charas was planted upon him. We also find contradiction in the testimony of PW3 Ramesh Kumar and PW8 Dhabe Ram, Sub Inspector as to the manner in which the sample was made representative. While according to PW3 Ramesh Kumar, the contents of all the twenty packets were mixed up, then two samples were taken and the charas was then put back into twenty packets. PW8 Dhabe Ram stated that one billet of charas was taken out from each of the twenty packets and the sample consisted of those billets. The contradiction suggests that the story put-forward by the prosecution that PW8 Dhabe Ram, PW3 Ramesh Kumar and PW4 Narinder Kumar were present near Kot Nulah around 5.00 P.M. and then they intercepted the appellant-accused with a bag and recovered the charas from him may not be correct. There is also a serious inconsistency in the prosecution case. According to the prosecution version, the appellant-accused was 4 intercepted at 5.00 P.M. or say much before sun-set, but PW4 Narinder Kumar has stated that it was dark when the appellant was arrested. How could it have been dark at 5.00 P.M. on 30.10.2002, when the sun sets not before 6.00 P.M. in the last week of October. In view of the above said position, we are of the considered view that the case of the prosecution does not stand established beyond reasonable doubt. Hence the appeal is accepted. Conviction and sentence of the appellant, as ordered by the trial Court, are set-aside. He is acquitted. Being in jail, serving out the sentence awarded by the trial Court, the appellant is ordered to be released immediately, in case his detention is not required in any other case. (Surjit Singh) Judge. (Surinder Singh), Judge. June 19, 2008. (bm)