IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 137 of 1997. Decided on: 02.06.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Nazir Mohmmad … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Deputy Advocate General. For the Respondent : Mr. Ashwani Pathak, Advocate. ___________________________________________________________ R.B. Misra, J. (Oral). The present criminal appeal has come for consideration after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 16.3.1996, passed by the learned Additional Sessions Judge, Nahan, HP, in Sessions Trial No. 2-N/7 of 1995, acquitting the respondent-accused for the alleged offence, under Sections 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. In order to adjudicate the criminal appeal, it is necessary to give the factual back ground of the case. 3. Prosecution case is that on 28.5.1993 at about 4.30 p.m., ASI Partap Chand together with Head Constable, Chaman Lal and Constable was present at the Bus Stand, Paonta Sahib on patrol duty, when it was noticed that bus No. HP-17-3018 bound for 1 Whether reporters of the local papers may be allowed to see the judgment? 2 Parduni from Paonta Sahib was moving and accused was trying to board the bus from its rear door and was apprehended on the basis of suspicion. ASI Partap Chand enquired from him whether he wanted to get himself searched by a Gazetted Officer but the accused expressed his intention to be searched by ASI Partap Chand. Thereafter, witnesses Sudesh Sharma, Santosh Kumar etc. were joined to attest the search of the accused. On search, three packets containing poppy husk were recovered from the bag being carried by the accused Nazir Mohmmad. On weighing, poppy husk was found to be 3 kilograms. 100 gram of charas was separated from each packet for the purpose of sample. Thereafter, the sample packets and the remaining poppy husk were sealed with seal impression ‘M’ and the seal was handed over to witness Sudesh Sharma. A Ruka was sent to the police station for registration of the F.I.R. Accordingly, the accused was challaned and sent for trial for the alleged offence. 4. In order to prove its case, prosecution examined as many as seven witnesses. In his statement under Section 313 Cr.P.C., the accused has shown his innocence and has declined the prosecution case. 5. We have examined the prosecution witnesses and material on record. We notice that the version of PW-7 ASI Partap Chand has been corroborated by PW-3 HC Chaman Lal and independent witnesses PW-1 Sudesh Kumar and PW-2 Santosh Kumar. However, with regard to the number of passengers in the bus, we notice that all the four prosecution witnesses have given different versions. PW-1 Sudesh Kumar has stated that papers of 3 recovery memo were prepared at the bus stand and the table etc. were taken from the nearby shop. However, according to PW-2 no chair or table was brought at the relevant time when the papers were prepared. According to PW-3 HC Chaman Lal, he had brought a bench from the tea-stall near the bus and then all the papers were prepared. 6. On comparison of the testimony of all the four prosecution witnesses, it cannot be ascertained as to whether the recovery memos were written at the bus stand or at the police station. According to PW-1 Sudesh Sharma, there were 30 to 32 passengers in the bus, whereas PW-2 Santosh Kumar has stated in his testimony that 30 to 40 passengers were in the bus. According to PW-3 Chaman Lal, there was no passenger in the bus at the time of incident. PW-7 Partap Chand has admitted that there were about 30 passengers at the bus stand. Prosecution witnesses have also indicated that number of shops are there at the bus stand. According to PW-2 Santosh Kumar, police prepared the documents while standing at the bus stand. 7. We have gone through the prosecution witnesses and other material on record. Several contradictions have apparently been noticed from the testimony of prosecution witnesses in respect of apprehending the accused as well as preparation of recovery memos and non-examination of sufficient number of witnesses. 8. On the basis of apparent contradiction in the prosecution witnesses, the learned Additional Sessions Judge has rightly arrived at a finding that prosecution has not been able to 4 prove its case beyond any reasonable doubt. We are of the considered view that there is no scope of any interference in the judgment. Therefore, the criminal appeal being devoid of any merit is dismissed. 9. We express our thanks for the assistance rendered by Mr. Ashwani Pathak, Advocate, who has assisted this Court as counsel for the accused on the State expenses. (R.B. Misra) Judge. (V.K. Sharma) Judge. June 2, 2010. (cr)