IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 424 of 2000. Date of decision: 22.11.2010. State of H.P. ….. Appellant. Vs. Ashwani Kumar …. Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr R. K. Sharma, Senior Addl. Advocate General. For the respondents : Mr. Ashwani K. Sharma, Advocate Sanjay Karol J. (Oral. For an offence, which is alleged to have been committed on 12.2.1998, accused was put to trial. In terms of judgment dated 14.3.2000 passed by learned Special Judge, Kangra at Dharamshala, in Sessions Case No. 19-P/VII/98 titled as State of H.P. vs. Ashwani Kumar, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that on 12.2.1998 SI Vinod Kumar (PW-8) was on patrol duty along with ASI Dina Nath (not examined), HC Trilok Chand (PW-3) and other police officials at Bus Stand, Baijnath. At about 3.30 P.M. accused saw the police Whether the reporters of the local papers may be allowed to see the Judgment? 2 and tried to slip away from the spot. Independent witness Sh. Pardeep Kumar (PW-4) was associated and accused was apprehended. Accused was given an option of being searched in the presence of the police officer, Gazetted Officer or Magistrate. He expressed his desire to be searched by the Gazetted Officer and was accordingly taken to the Dy.SP Hari Chand (PW-7) who was close by. There accused exercised his option in writing (Ext.PE). Upon being searched in the presence of S/Sh. Pardeep Kumar (PW-4) and Ramesh Kumar (PW-1), it was found that accused was carrying a polythene envelop in the pocket of his coat which contained charas like substance in the form of Batties. Same was weighed and found to be 540 grams. Two samples of 25 grams each were taken by the police and remaining parcel was sealed separately. Seal impression ‘A’ was put on all the parcels and seized vide recovery memo (Ext.PA). SI Vinod Kumar (PW-8) sent rukka (Ext.PH)to the Police Station for registration of the case. On the basis of report F.I.R. No. 17/98 (Ext.PC) dated 12.2.1998 under Section 20 of the NDPS Act was registered with Police Station, Baijnath by HC Piare Lal (PW-5). SI Vinod Kumar completed the investigation at the spot. Sample of charas was sent through Constable Milap Chand (PW- 6) to the Chemical Examiner at Kandaghat, who gave his report (Ext.PQ) showing that the contraband substance 3 was in fact charas. With the completion of investigation challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to which he did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined 8 witnesses and the statement of the accused under Section 313 Cr.PC was also recorded. 5. Court below acquitted the accused of the charged offence, inter alia on the ground that mandatory provisions of Section 50 of the Act were not complied with in letter and spirit by the police; independent witnesses did not support the prosecution and the statements of the police officials did not inspire confidence, Hence it could not be said that prosecution was able to prove its case beyond reasonable doubt. Hence the present appeal. 6. There is no doubt that independent witnesses Ramesh Kumar (PW-1), who is a taxi driver and Pardeep Kumar (PW-4) who runs a Photostat and type shop at Baijnath have not supported the prosecution at all. Both were declared hostile and subjected to detailed cross-examination, yet nothing fruitful could come out from their testimonies and it cannot be said that they have deposed falsely. According to them, nothing was 4 recovered from the possession of the accused in their presence nor was any option of search given by the police to the accused. This has rendered the prosecution version to be doubtful. 7. It is a settled position of law that if statements of police officials inspire confidence, then even without corroboration, they can be relied upon to prove the culpability of the accused to the charged offence. 8. After close scrutiny of material on record, we are of the considered view that statements of police officials do not inspire confidence. It cannot be said that mandatory requirements of Section 50 of the Act stand complied with. Accused was charged for having committed an offence punishable under the Narcotic Act. It is serious crime having serious consequences. Considering the stringent provisions of the Act police is duty bound to strictly comply with the same in letter and spirit. 9. Now in the instant case PW-8 states that accused was given an option of getting searched by the Police Officer, Executive Magistrate or Gazetted Officer and in writing (Ext.PE) accused gave his option of being searched by the Dy.SP. Now there is contradiction in the version of PW-3, PW-7 & PW-8 on this point. PW-7 admits that no separate record of giving option to the accused was prepared. We find 5 that option given by the police is not on record. No option in writing was given to the accused. It also need not be if the oral testimonies were to inspire confidence. Consent (Ext.PE) reads as under:- “I would like my personal search to be conducted in the presence of gazetted police officer.” Authenticity of this document itself is in doubt. It has not been signed by any of the witnesses. Why so has not been explained by the police. 10. We also find that recovery of charas in the manner stated by the police officials appears to be doubtful. Even Sh. Jawari Lal (PW-2) has not supported the prosecution case and has deposed that no recovery was effected in his presence. Police only took the weighing scales from his shop. 11. We further find even on the question of link evidence prosecution version to be unbelievable. According to PW-8, parcels were sealed with seal impression ‘A’. As per the Chemical Examiner’s report, sealed samples were bearing only seal impression ’A’. None of the prosecution witnesses have come forward to depose that the sealed samples, when brought to the Police Station were again re-sealed by the MHC or the concerned police official or that they were kept in the safe custody i.e. Malkhana. Consequently samples being tampered with during the 6 course of investigation cannot be ruled out particularly when prosecution has failed to produce on record the road certificate. 12. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra) Judge (Sanjay Karol) Judge November 22, 2010 (rana)