IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 425/1998 Reserved on: 17.5. 2010 Decided on:18.6. 2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Gurdyal Singh. …Respondent. _______________________________________________________ Coram: Hon’ble Mr. Justice Deepak Gupta, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant: Mr. Vivek Thakur, Addl. Advocate General. For the Respondent: Mr. Sunil Mohan Goel, Advocate. ____________________________________________________ Per Rajiv Sharma, J. By way of this appeal, the State is seeking reversal of the judgment dated 29.8.1998 of the learned Sessions Judge, Kullu and Lahaul-Spiti at Kullu rendered in Sessions Trial No.13/1998, whereby respondent, who was charged with and tried for offence punishable under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has been acquitted. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 2. Case of the prosecution, in a nutshell, is that on 12.12.1997, Sh. P.N. Banyal, SHO, Police Station, Kullu alongwith ASI Kanwar Singh and constables Ishru Ram, Baldev Dass and Sant Ram started from Kullu at 1.00 in the night on patrolling towards Bhunter, Bajaura, Dohra Nullah side. At about 5.00 A.M., when they reached Dohra Nulla, they got the secret information that Gurdyal Singh accused deals in purchase and sale of charas and if his house was raided immediately, the charas could be recovered from his house. He recorded rukka Ex.PA and sent it through Constable Ishru Ram to Superintendent of Police, Kullu. Thereafter they started moving towards village Kharka and on their way Sobha Ram, Pradhan was joined in the raiding party and Room Singh joined in village Kharka. When the raiding party reached the house of accused, he was present in the house. The room, in possession of the accused, was searched and on search one bag of white colour, having dust, was recovered lying above the box near the window. The bag contained charas in the shape of sticks which was wrapped in Dhathu (piece of cloth). The Dhathu was of green, yellow and blue colour. The charas was weighed and found 3 kg 450 grams. Two samples of 25 grams each were taken out and the samples and remaining charas were sealed in separate parcels with seal ‘A’ and after taking impression of the seal, the seal was given to Baldev Dass 3 witness. Thereafter the charas and samples were taken into possession vide memo Ex.PH. The same was also signed by the accused. NCB form was prepared in triplicate on the spot. The accused was arrested and he was told the grounds of arrest, offence and sentence, vide Fard Ex.PJ. It was signed by the accused. Ex. PC was prepared and sent to Police Station through Constable Sant Ram. Site plan Ex.PL was also prepared. Samples, case property and NCB forms were handed over to MHC Ranjit Singh. He also prepared the special report and sent it to the Superintendent of Police, Kullu through Constable Sant Ram vide Ex.PB. The report of the Chemical Examiner is Ex.PX. According to the report of the Chemical Examiner, the contents of sample were found to be of charas. After the completion of investigation, challan was put up in the Court after completing codal formalities, under section 207 of the Code of Criminal Procedure. 3. Prosecution examined as many as nine witnesses in support of its case. Accused was examined under section 313 of the Code of Criminal Procedure. The defence of the accused was that he is innocent and he never resided in village Kharka and he is residing in village Shakorh and no search of his house was ever conducted nor any charas was recovered. The trial court acquitted the respondent-accused. Hence, this appeal by the State 4 4. Mr. Vivek Thakur, learned Additional Advocate General has strenuously argued that the prosecution has proved its case against the respondent-accused. 5. Mr. Sunil Mohan Goel has supported the judgment of the learned trial court. 6. We have heard the learned counsel for the parties and perused the record carefully. 7. PW-1 Ishru Ram states that on 12.12.1997, he was posted in Police Station, Kullu. He went with SHO and ASI Kanwar Singh on patrolling towards Dohra Nullah. At 5.00 A.M., SHO handed over information report to him. He gave the information report to the Superintendent of Police, Kullu at 8.00 A.M. at his residence. The Superintendence of Police signed the information report and after reading the same gave it to him to be taken to the office. He gave that report to Reader to Deputy Superintendent of Police, namely, Durga Dass at 10.00 A.M. 8. PW-2 is Durga Dass. He deposed that on 12.12.1997, Ishru Ram, Constable (PW-1) brought information report which was signed by the Superintendent of Police after writing ‘seen’ and gave the report to him. He entered the same in serial No. 34 of the register maintained in the office. 9. PW-3 is Ranjit Singh. He was posted as Additional MHC, Police Station, Kullu from July, 1997 to 5 April, 1998. He deposed that on 12.12.1997, Constable Sant Ram No. 279 brought one rukka from SHO at 2.30 P.M., on which he recorded the FIR Ex.PD. Thereafter the file was sent to SHO through the same constable. On 12.12.1997 at 6.15 P.M., SHO deposited three sealed parcels sealed with seal ‘A’ alongwith NCB-I form in triplicate, which he kept in the Malkhana. On 16.12.1997, one sample sealed of charas was sent to Central Forensic Science Laboratory, Chandigarh through constable Sant Ram alongwith NCB-I form for chemical analysis vide RC No. 186/21 and Sant Ram after depositing the same in the Laboratory, returned the RC to him. So long the case property and the sample remained in his custody, nobody tampered with the same. 10. PW-4 Room Singh deposed that about five/six months back, police came to his village. Police met him in the passage and his signatures were taken by the police under threat and duress. No search of any house was conducted in his presence nor any charas was recovered in his presence. He was declared hostile. 11. PW-5 is Sobha Ram. He was Pradhan of Gram Panchayat, Shili-Rajgiri. One constable came to his house about seven/eight months back and told him that the police has come in the village and he asked him to accompany him. He went to village Kharka and reached there at 10.00 A.M. Police told him that the charas has been recovered from the 6 area. Thereafter he was told that he being Pradhan should sign the papers. According to him, no search of the house of accused was conducted in his presence nor any charas was recovered from his house. He was also declared hostile. 12. PW-6 Baldev Dass constable deposed that he was posted in Police Station, Kullu since March, 1994. On 12.12.1997, he, Room Singh and Sobhu Ram were present with SHO at village Kharka at 8.00 A.M. and were present out side the house of Gurdial Singh. According to him, Room Singh, Sobha Ram and SHO took the search of the house of accused and before going inside, SHO gave his search to accused vide memo Ex.PG. On search of the house, one bag of cloth was found on the box and on opening the bag, one Dhathu was found of green, yellow and blue colour, in which charas was found in the shape of sticks. The charas was wrapped in polythene wrappers. The charas was weighed and found 3 kgs and 450 grams. Two samples of 25 grams each were taken and the samples and remaining charas were sealed in separate parcels with seal ‘A’. The seal was given to him and the charas and samples were taken into possession vide memo Ex.PH. The seal was lost. 13. PW-7 is Kanwar Singh, ASI. He deposed that he partly conducted the investigation. On 19.2.1998, he recorded the statements of Head Constable Durga Dass and Head Constable Ranjit Singh. He also took into possession 7 the photocopy of the special report and information report from Durga Dass. 14. PW-8 Constable Sant Ram deposed that he was posted in Police Station, Kullu since November, 1997. On 12.12.1997, he was with Sh P.N. Banyal on patrolling at Dohra Nullah when SHO received secret information and the information was recorded by the SHO and sent to Police Station through constable Ishwar Dass. He alongwith SHO went to village Kharka. The charas was recovered from the house of accused. SHO prepared rukka and gave it to him at 11.00 A.M. He took it to Police Station, Kullu and gave the rukka to Additional MHC Ranjit Singh at about 2.30 P.M. He recorded the FIR and gave the file to him, which he gave to SHO at Dohra Nullah. On 13.12.1997, SHO gave him special report, which he handed over to Reader to Superintendent of Police, namely, Sh. Durga Dass. The copy of the report is Ex.PB. 15. PW-9 P.N. Banyal was posted as Station House Officer at Police Station, Kullu. He deposed that on 12.12.1997, he alongwith ASI Kanwar Singh, constables Ishru Ram, Baldev Dass and Sant Ram started from Kullu at 1.00 P.M. in the night. He received secret information at 5.00 A.M. when he reached Dohra Nullah. He recorded the information Ex. PA and sent the same through constable Ishru Ram to Superintendent of Police Kullu. The house of 8 the accused was searched and charas was recovered. Two samples of 25 grams each were taken out and the samples and remaining charas was sealed in separate parcels with seal ‘A’ after taking the impression of the seal. The seal was given to Baldev Dass. He prepared NCB forms in triplicate. 16. Two independent witnesses, i.e. PW-4 Room Singh and PW-5 Sobha Ram have not supported the case of the prosecution at all. According to PW-4 Room Singh, his signatures were obtained by the police under threat and duress. He has also deposed that no search of the house of accused was conducted in his presence and no charas was recovered in his presence. According to PW-5 Sobha Ram, when he reached village Kharka, charas was already recovered. Police told him that charas has been recovered from the house of accused; therefore, he being Prahdan should sign the papers. He categorically deposed that neither any search of the house of accused was conducted in his presence nor any charas was recovered. He was declared hostile. 17. According to PW-1 Ishru Ram, they were at the spot with SHO PW-9 P.N. Banyal and PW-7 ASI, Kanwar Singh. PW-9 has also deposed that ASI Kanwar Singh was with him on 12.12.1997, however, PW-7 Kanwar Singh is silent on this aspect. He has not mentioned that he was at the spot on 12.12.1997 with the raiding party. He has only 9 deposed that he has partly investigated the case. PW-6 Baldev Dass has also not deposed that ASI Kanwar Singh was with them at the time when the house of accused was searched. The prosecution has failed to prove that charas was recovered from the house of accused. 18. Accordingly, in view of the aforesaid discussion, we find no merit in the appeal and the same is dismissed. Bail bonds furnished by the accused-respondent are ordered to be discharged. (Deepak Gupta), J. (Rajiv Sharma), J. 18.6. 2010 *awasthi*