IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. MP (M) 490/2009 Date of decision: 23. 6. 2009 State of H.P. …..Petitioner Versus Rajnish Kumar ……Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . No For the Appellant: Mr. R.M. Bisht, Deputy Advocate General, with Mr. Rajesh Mandhotra, Deputy Advocate General. For respondents: None. Surinder Singh, J. (Oral) The State has sought leave to appeal, in the case of acquittal of the respondent, passed by the learned trial court in Sessions Trial No. 24 of 2006, for the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short “the Act” arising from FIR No. 140 of 2005, registered in Police Station, Kullu, H.P., on 2.4.2005. In short, the prosecution case is that respondent Rajnish Kumar along with his co-accused Shyam Lal, [proclaimed offender], 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. Yes - 2 - both resident of Jallandhar (Punjab) were traveling in their Maruti Car No. PB-01-B- 001. The police party headed by S.I. Additional S.H.O. Balwant Singh (PW-4) was present at ‘Lugarbhathi’ near Kullu in connection with ‘Nakabandi’. The car was being driven by respondent and his co-accused Shyam Lal was sitting besides him in the front seat. The police party stopped their vehicle and asked about their identity. On questioning by the police, both the occupants of the vehicle got perplexed and could not render any satisfactory explanation thus, the police suspected some contraband in their possession. As it was secluded place and no witness were found present as such Sub Inspector Balwant Singh (PW-4) associated Head Constables Harbans Lal and Mohan Lal as the independent witnesses in the case and gave options to both of the accused persons either to be searched by them or before any Gazetted officer or the Magistrate. Accused persons opted to give search to the police party present there. Accordingly memos to this effect were prepared. S.I. Balwant Singh gave his personal search to respondent Rajnish. Nothing incriminating was found in his possession. Thereafter said police party - 3 - conducted the personal search of the respondent and recovered two polythene envelops from the pocket of the pant of Rajnish, which contained 50 gms. of ‘heroin’ in both the envelopes. The contents of both packets were mixed up and two samples of 5 gms. each were separated and sealed with seal impression ‘B’ separately. The remaining bulk was also sealed with the same seal. N.C.B. forms in triplicate were filled in and case property was taken into possession vide search and seizure memo Ext. P-M signed by the aforesaid official witnesses. Its copy was also handed over to the respondent. Thereafter, co-accused Shyam lal was subjected to search by S.I. Balwant Singh in the presence of same witnesses and recovered one polythene envelop from the pocket of his shirt in which two polythene envelopes were found containing 50 gms. of ‘heroin’. Two samples of 5 gms. each were separated and sealed with seal impression ‘B’ and remaining bulk was also sealed and N.C.B. forms in triplicate were filled in at the spot and case property was taken into possession vide seizure memo Ext. P-O, in the similar way as in case of Rajnish. - 4 - Both the accused persons were arrested and grounds of arrest were informed to them. A Ruka Ext. P-Z was sent for registration of the case through constable Lal Singh, on the basis of which FIR Ext. P-A/F was registered. Site plan Ext. –A/A of the site of recovery was also prepared. The accused as well as the case property was produced before PW-8 S.H.O. Badri Singh. The case property was re-sealed by him. Thereafter it was deposited with PW-3 MHC Roop Singh (PW-1) in the police Station and its entry was made in the Malkhana Register. Two samples along with relevant police dockets were sent to C.F.S.L. Chandigarh through HHC Jai Krishan and on its deposit, he handed over the receipt back to M.H.C. Roop Singh. The special report with respect to the search and seizure was sent within the statutory time to Dy. S.P., Kullu. After completing the investigation, challan was presented in the court for the trial of the respondent and his co-accused Shyam lal. Co-accused Shyam Lal was also arrested in another case in Jallandhar. When production warrants were sent for his presence in this caase, it was reported that he had - 5 - escaped from the custody, as such the proceedings were initiated against him under Section 82 of the Code of Criminal procedure and ultimately he was declared as proclaimed offender. Before the learned trial court only the respondent Rajnish faced the trial. He was charge sheeted for the offence aforesaid, to which he pleaded not guilty and claimed to face trial. At the end of the trial, respondent was acquitted, to which we also endorse, because PW-4 S.I. Balwant Singh testified on oath that respondent was on his way in his Maruti car along with his co-accused, to Manali from the place known as ‘Tapu’ whereas constable Lal Singh, who was accompanying the Sub Inspector aforesaid gave another version that accused-respondent came from Manali side in his car to ‘Tapu’ where he was apprehended with his co-accused. Whereas S.I. Balwant Singh had shown the place of occurrence at ‘Lugarbhathi’ which is 3-4 K.M away from ‘Tapu’ this made the statements of both these witnesses irreconcilable with respect to the place of recovery and arrest of the accused, which makes the prosecution case a suspect. Further, learned trial court took note of the fact that two envelopes were - 6 - allegedly recovered from the right side pocket of the pant of the accused-respondent from which two samples were drawn. Whereas constable Lal Singh PW-5 testified on oath with respect to the recovery of only one polythene envelope from the respondent and he did not support the recovery of the two envelopes from him nor its mixing up, as stated by PW-4 aforesaid. The another important factor to which the learned trial court had taken note of was that the samples drawn from the recovery of the alleged contraband from the respondent and his co-accused were not marked separately to make it identifiable which of the case property and samples belonged to which of the respondent. The entire case property containing 6 packets were deposited in Malkhana. Out of the aforesaid samples only two were sent for its examination to the C.F.S.L. Chandigarh. But in absence of any particular mark, it cannot be said that which of the samples belongs to which of the respondent and it was rightly observed that the possibility of mixing the samples with each other could not be ruled out. Therefore, in these circumstances, the possibility of sending both the samples pertaining to the absconding accused cannot be ruled out. As - 7 - such in our considered opinion, respondent was rightly acquitted of the offence by the learned trial court. Thus, we have no valid reason to interfere with the impugned judgment of acquittal. Therefore, leave to appeal is refused. Consequently appeal filed by the State stands dismissed. (Deepak Gupta), J June 23, 2009 (Surinder Singh),J. (cm)