1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.1 of 2002 Decided on May 30, 2011 State of H.P. …Appellant. VERSUS Parkash Dass. ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Addl. AG. For the Respondents: Mr. Chaman Negi, Advocate. R.B.Misra, Judge (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 17.9.2001, passed by learned Sessions Judge, Bilaspur, HP, thereby acquitting the accused/respondent for the offence under Section 20 of Narcotic Drugs & Psychotropic Substances Act, 1985. 2. The prosecution case, in brief, is that on 10.1.2001, the accused was traveling in Jeep No.HP-34-4892, from Kullu to Allahabad. On way near Bilaspur, the Jeep, which was being driven by Hari Krishan, was checked up by the police at about 2.45 P.M. Whether the reporters of the local papers maybe allowed to see the judgment? 2 and ten persons, including driver and accused, were found in the jeep. Out of whom, six were ladies and four were gents. A bag containing Charas, being carried by the accused on his lap was recovered from the possession of the accused, in which Charas was kept in a polythene envelope. The Charas was weighed and the same was found 1 Kg. 225 gms. Out of which, two samples each of 25 gms. were taken and remaining Charas was kept in three separate cloth parcels, which were sealed with seal “M”. A seizure memo was prepared, which was witnessed by Hari Krishan, the driver of Jeep and also by Moti Ram. The Ruqa was sent to Police Station, Sadar, Bilaspur and in that reference, the FIR was lodged. The matter was investigated and the case was tried by learned Sessions Judge. 3. In order to prove its case, prosecution has examined as many as 7 prosecution witnesses, whereas, through his statement under Section 313 Cr.PC, accused/respondent had denied the prosecution case. 4. Prosecution has examined (PW-1) Hari Krishan, (PW-2) Inspector Devi Ram, (PW-3) HC Ram Lal, (PW-4) HC Chet Singh, (PW-5) HC Jag Pal, (PW-6) HC Devi Ram and (PW-7) ASI Dharam Singh. 5. PW-1 Hari Krishan, driving the said Jeep No.HP-34- 4892 on 10.1.2001, has stated that the Jeep, carrying the passengers was going to Allahabad, for their holy dip in Kumbh. When the Jeep crossed Bilaspur, the police stopped the Jeep and conducted the search of the luggage which was kept in the jeep and also the personal search of the occupants of the Jeep. The 3 accused was taken into custody by the police and the Jeep was allowed to proceed further. PW-1, in cross examination, has denied that the accused had boarded the Jeep at Panarsa, as he boarded the Jeep at Nagwain itself. The accused was occupying the front seat with Moti Ram. As per the statement of PW-1, two samples were taken from the Charas and seal was put over them and his signatures and that of Moti Ram were obtained. PW-1 has stated that on personal search of the accused, the articles mentioned in Ext.P.B, were recovered from the accused, which bear his signatures and that of Moti Ram. PW-1, in cross-examination, has stated that the accused boarded the Jeep at Jogini, which is about one and half K.M. from Nagwain and other passengers thereafter, boarded the Jeep at Nagwain, including Moti Ram and six ladies. PW-1, however, has stated that one person had boarded the Jeep at Panarsa, who was not known to him. PW-1 has further stated that he had occupied back seat with the ladies and that person told PW-1 that he wanted to go to Kullu. As per the statement of PW-1, when the accused boarded the Jeep at Jogini, he had only one ‘Kamandal’ with him and no other article and a man boarded at Panarsa was having a bag. As per the statement of PW-1, the man, who boarded the Jeep at Panarsa, had also got down from the Jeep at Nauni, when the Jeep was stopped by the police and when the police started checking, that man had run away and his, whereabouts, were not known. PW-1 has also stated, in cross examination, that the documents, on which his signatures were obtained by the police, were not read-over to him. PW-1 has further stated that no Charas was recovered from the accused. 4 6. PW-2 Inspector Devi Ram, had received samples sealed with seal “M” and re-sealed with seal “N”. 7. PW-3, Head Constable Ram Lal in his endeavor to support the prosecution case, has stated that he received Ruqa Ext.PF at Police Station through Constable Brij Lal and on that basis formal FIR was recorded. On the same day, Inspector Devi Ram had handed-over to him three sealed parcels and these parcels were sealed with seals “M” and “N” and he had kept these parcels in his custody. On 12.1.2001, one sample was sent to Chemical Examiner, Kandaghat, through constable Devi Ram, vide RC No.117/2001. 8. PW-4, Head Constable Chet Singh, had received the special report of the case Ext.PH. PW-5, HC Jag Pal, has stated that the Jeep in question was checked by ASI Dharam Singh in his presence. Moti Ram and accused were sitting on the front seat by the side of the driver and on the back seats, six ladies and one man were sitting. The accused was carrying a bag on his lap and on search, Charas was recovered from his bag and after weighing, it was found to be 1 Kg. 225 gms. PW-5 brought weighing scales and weights from Mandi Manwan from the shop of one Rajesh, Shopkeeper. The Charas was recovered in presence of Moti Ram and Hari Krishan. Two samples were taken out from the Charas received and sealed with seal “M”. PW-5, in cross examination, has denied that when the accused came out of the Jeep, he was having only ‘Kamandal’ in his hand. PW-5, in cross examination, has further stated that there were shops at Nauni and Kothipura, but the shopkeepers did not have weighing scales and weights there. PW-5 5 has also stated that accused had got down from the Jeep before ASI Dharam Singh reached near the Jeep. PW-5 has further stated that the male person, who was sitting with the ladies got down from the Jeep, further volunteered that they had conducted the search of all those persons inside the Jeep and they got down from the Jeep after the search. 9. PW-6, Head Constable Devi Ram, who had carried the sample parcels bearing four seal impressions of seal “N’ to Chemical Examiner, Kandaghat for chemical test. 10. PW-7, ASI Dharam Singh, in his endeavor to support the prosecution case has stated that on 10.1.2001, at about 2.45 P.M. at Nauni, he was on traffic checking duty along with HC Jagpal, HC Mast Ram. Constable Ram Singh, Constable Brij Lal. The Jeep in question, driven by Hri Krishan, came from Bilaspur side, which was stopped by him. Two persons were sitting on the front seat, six ladies and one man were sitting on the back seats and on search of accused Parkash Dass, who was carrying a green colour bag on his lap, the Charas, in the form of sticks was recovered, which were kept in polythene envelopes. The search was effected in the presence of Hari Krishan and Moti Ram. Thereafter, PW-7 deputed HC Jag Pal for bringing weighing scales and weights. He came along with Rajesh on the spot with weighing scales and weights. On weighing the Charas, it was found to be 1 Kg. 225 gms. Out of the Charas recovered, two samples were drawn. The personal search of the accused after arrest was made and articles, as mentioned in Ext.PB, were recovered from him. The NCB form Ext.PL was filled up by Kapil Sharma, Additional S.P., 6 Bilaspur. In cross examination, PW-7 has stated that local persons were not associated on the spot because they were not available there. No police official was deputed for summoning local inhabitants to be associated as independent witnesses. However, he did not remember that witness Hari Krishan had told that one man boarded the said Jeep at Panarsa, whom he did not know. PW-7 has denied that bag Ext.P-3 was under the seat of the Jeep. PW-7 has also denied that a man sitting on the back seat of the Jeep went along with other occupants of the Jeep, or not after the search. He has also denied that the accused when came out was having one ‘Kamandal’ in his hand. 11. From the testimony of prosecution witnesses and materials on record, out of the two independent witnesses associated with the raiding party, Moti Ram surprisingly has not been examined, whereas Hari Singh examined has made a contradictory statement. As per the testimony of PW-1, the man carrying bag during search had ran away and the accused person came out of the Jeep carrying one “Kamandal’ in his hand. PW-1, the only independent witness, has not supported the prosecution case. Other official police witnesses are also not consistent in their statements. PW-1, though has been declared hostile, however, has indicated that samples were taken, seal was put over the samples and his signatures without apprising him were obtained and nothing has been further proved, as to whether the person sitting on the back seat had escaped. In totality, all the police official witnesses, are not consistent and their testimony is not inspiring confidence. In these circumstances, their statements are not sufficient to prove the 7 prosecution case. In our considered view, prosecution has not been able to bring home guilt to the accused successfully. Therefore, we find no scope for interference in the impugned judgment of the learned Sessions Judge. The criminal appeal, being devoid of any merit, is accordingly dismissed. 12. The bail bonds, furnished by the accused/ respondent, are discharged. ( R.B.Misra ), Judge. 30 May 2011 (V.K. Sharma) (rkv) Judge.