IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. A. No. 467 of 2001 Date of decision: 02.05.2011 _____________________________________________________ State of Himachal Pradesh … Appellant. Versus Desh Raj … Respondent. _____________________________________________________ Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 _____________________________________________________ For the Appellant : Mr. R.K. Sharma Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. For respondent : Mr. N.K. Thakur Advocate. _____________________________________________________ Justice R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 28.11.2000 passed by learned Sessions Judge Una, H.P. in Sessions Trial No. 19 of 2000, acquitting the respondent/accused for the offences under Section 20 of the Narcotics Drugs Psychotropic Act, in reference to FIR No. 46 of 2000 dated 20.1.2000. 2. On 20..1.2000 at about 10.30 P.M,. HC Jit Singh was present near Pirnigha and received a secret information that 1 1. Whether Reporter of the local newspapers may be allowed to see the judgment. 2 accused/respondent was selling charas near latrines and pond at Pirnigha. Such information was disclosed by him to SI Ranjit Singh at 11.05 P.M. on which information report was sent to S.P. and rukka was sent for registration of the case and after association of two witnesses Balwinder Singh and Ranbir Singh, accused/respondent was intercepted and he was apprised of his right of being searched and he was also asked whether he wanted to give search to the SI or before the gazetted officer or Magistrate, and after obtaining his consent and search charas was recovered from the right pocket of the jacket of the accused/respondent kept in polythene packet, which on weighing was found 40 grams, from which samples of 5 grams each were taken out which were sealed on the spot after fulfilling the formalities and after investigation the accused/respondent was charged for the aforesaid offence. 3. In order to prove its case the prosecution examined as many as 10 prosecution witnesses, whereas, the accused/respondent, through his statement under Section 313 Cr. P.C denied the prosecution case. 4. After going through the contents of the evidence of the prosecution witnesses and materials on record, PW-8 has stated that he is Pradhan of Gram Panchyat, Basoli and has stated that on 20.1.2000 he joined Balwinder Singh and went to temple office of Pirnigha, where accused/respondent, was present and search of the accused/respondent was made. However, PW-8 had denied that accused/respondent was not 3 taken to the tank near latrine and he was not given notice before recovery and search. From the testimony of PW-8, sealing of sample was made in temple office, however, without looking to the contents thereof he had put his signatures. 5. PW-9 Balwinder Singh has deposed that on 20.1.2000, he went to temple office, Pirnigha where some police personnel were present with 4/5 boys and some black commodity was lying there which was told charas, but he did not know from whom the same was recovered because no search was conducted in his presence. However, PW-9 was also declared hostile. 6. PW-10 SI Ranjit Singh has deposed in support of the prosecution, by stating that on reaching Pirnigha he deputed HC Jit Singh in civil dress to collect information regarding commission of the crime and when he was present near the temple of Pirnigha HC Jit Singh came and informed that he had received secret information that one Desh Raj alias Desu is selling charas. Accordingly, statement Ex. P-A was recorded and was sent to PS, Una through C. Banku Ram for registration of the case, which accordingly was sent to C. Manmohan Singh in duplicate and thereafter he deputed HC Jit Singh to bring witnesses and scale and after some time Jit Singh brought witnesses Balwinder Singh and Ranbir Singh and in their presence personal search of accused/respondent was conducted. The accused/respondent was apprised of his right to be searched and 40 grams of charas was recovered from the 4 pocket of the accused/respondent. After taking two samples of five grams each, the remaining charas was sealed separately and sealed with seal impression ‘A’ and the sample was handed over to Ranbir Singh. After fulfilling the codal formalities, the same was sent for chemical analysis. 7. On scrutiny of the prosecution witnesses and materials on record, we notice that PW-8 Ranvir Singh and PW-9 Balwinder Singh were declared hostile regarding search of the accused/respondent about the recovery of charas. As per two prosecution witnesses PW-8 and PW-9, no notice was given before the search of the accused/respondent. We also take note of the fact that no signature of the independent witness was taken on the notice, but on the reply of the accused/respondent the signatures of the witnesses were obtained. From the evidence of other prosecution witnesses, nothing is emanating that NCB form was filled up on the spot; whether the same NCB form was accompanying the contraband good and was submitted to the police station is also proved. Nothing has been mentioned that ‘NCB’ form was sent with road certificate for chemical analysis. The sample was taken on 21.1.2000 whereas, the same was sent on 24.01.2000 for chemical analysis. From the chemical report, we also notice that the Ext. P-C does not reflect fascimile seal over it, whereas, on two separate clothes seal impression ‘A’ and ‘B’ have been put. From the testimony of prosecution witnesses, nothing is emanating on record and it does not indicate from 5 which exact place the search of the accused/respondent was made. As such, the place of recovery has also becomes doubtful. Taking into consideration, the entirety of the facts and circumstances we are of the considered view that prosecution has failed to prove its case beyond reasonable doubt. 8. In view of the inconsistencies and contradictions having been noted by the learned Sessions Judge, he 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. There is no scope of interference in the impugned judgment. The criminal appeal, being devoid of any merit, is accordingly dismissed. 9. Bail bonds, furnished by the respondent, are hereby discharged. (R.B. Misra), J. 2nd May, 2011 (V.K.Sharma), J. Naveen 6