IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.702 of 1996. Dated of Decision: November 25, 2009. State of H.P. ……… Appellant. Versus Pawan Kumar ..…. Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?. For the Appellant : Mr. Ramesh Thakur, Asstt. Advocate General. For the Respondent : Mr. Dushyant Dadwal, Advocate. Surjit Singh, J (oral): This appeal is directed by the State against the judgment dated 25th May, 1996 of learned Sessions Judge, Kangra, whereby respondent Pawan Kumar, who was charged with and tried for offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for allegedly possessing 1.700 Kgs. of Charas, has been acquitted. Case of the prosecution which led to the trial of the respondent was that on 3rd November, 1989, when PW5 Kartar Singh, ASI/ Incharge, Police Post Nagrota Bagwan, accompanied by Kanhaya Lal, Prem Singh and Roshan Lal was going towards Massal road, respondent was seen coming from M.E.S. fields, Whether reporters of local papers may be allowed to see the judgment? 2 carrying one bag on his shoulder and when he (the respondent) reached the motorable road and saw the police people, he tried to withdraw and flee. He was overpowered. The bag which he was carrying was searched. It was found to contain two plastic bags. Both the bags contained Charas like stuff. Weight of the stuff in one bag was 800 grams and in another it was 900 grams. Two samples, each weighing 5 grams were separated, one from each of two bags and made into two separate parcels. Bulk stuff was sealed in another parcel. Parcels were deposited with MHC. At the time of search, PW1 Sher Singh and PW2 Chamel Singh were allegedly associated as witnesses. Both the samples were sent to the Chemical Examiner, who vide report Ex.PX, gave the opinion that samples were of Charas. Respondent was charged by the learned Sessions Judge, with the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. He pleaded not guilty and was, therefore, tried for the said offence. Prosecution examined the alleged two independent witnesses, namely Sher Singh (PW1) and Chamel Singh (PW2) besides examining Kartar Singh ASI (PW5), who conducted the search and recovered Charas. Both Sher Singh and Chamel Singh turned hostile and did not support the prosecution case. They stated that they were called to the Police Station and required to sign certain papers. ASI Kartar Singh (PW5), while in the witness box, though did state that the respondent was apprehended and on 3 search of bag, which he was carrying, Charas was recovered, yet he did not testify that the Charas was contained in two polythene bags. He simply stated that the bag was searched and it was found to contain 1.700 grams of Charas in polythene bag. Also his statement in the Court is different from the earliest version Ex.PW4/A, which he has sent to the Police Station, for the registration of case, inasmuch as, in the said version, it is recorded that the respondent was apprehended when he reached the motorable road and on seeing the police, turned back and run away, but in the Court, he stated that the respondent was nabbed when he was coming from the fields. It appears that names of Sher Singh (PW1) and Chamel Singh (PW2) had been interpolated in the earliest version Ex.PW4/A and that initially space for writing the names and particulars of the witnesses had been left blank. This apparent interpolation of the names of the witnesses in Ex.PW4/A suggests that the statement of PW1 Sher Singh and PW2 Chamel Singh that they were not present on the spot, but were called to the Police Station and made to sign the papers, may not be untrue. Also we find that copies of the FIR were dispatched to the concerned authorities, including the Illaqa Magistrate on the next following day, i.e. on 4.11.1989 at 2 p.m. No explanation for delay in lodging the FIR has been put forward. The delay also indicates that names of the witnesses were not there in Ex.PW4/A when this document was initially prepared and that FIR on the basis of this document was recorded only when names of PW1 and PW2 had 4 been interpolated and then the FIR was dispatched to the concerned Magistrate and other Officers. In view of the above stated position, we do not think this to be a fit case for interfering with the judgment of acquittal, passed by the learned trial Court, even though, we disagree with the reasoning of the trial Judge that the respondent is entitled for acquittal on account of non-compliance of the provision of Sections 42 and 50 of the Narcotic Drugs and Psychotropic Substances Act, because neither of the two provisions is applicable, because search was conducted at a public place in the open and hence, Section 42 was not applicable and also because the recovery was effected from search of the baggage of the respondent and not on search of his person. For the foregoing reasons, appeal is dismissed. (Surjit Singh) Judge November 25, 2009. (Surinder Singh) (Pds) Judge.