IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 488 of 1996 Date of decision: 20.09.2010 __________________________________________________________________ The State of H.P. .....Appellant. Versus Baldev Singh. .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? __________________________________________________________________ For the appellant: Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Rajesh Verma, Advocate, Amicus Curiae. R.B. Misra, J (Oral). Mr. Rajesh Verma, Advocate, has been requested to assist this Court as Amicus Curiae and he has kindly agreed to the same. Accordingly, Mr. Rajesh Verma, Advocate, has assisted this Court in response to the submissions made by Mr. R.K. Sharma, Sr. Additional Advocate General, for the appellant-State. 2. The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 08.03.1996, passed by learned Sessions Judge, Una, District Una, Himachal Pradesh, in Sessions Case No. 35 of 1995, acquitting the alleged accused under Section 20 of the Narcotic Drugs & Psychotropic Substances Act in reference to FIR No. 100 dated 01.08.1992. 3. Prosecution case in brief is that on 01.08.1992, ASI Rulia Ram, P.S. Amb, alongwith other police officials received a secret information that accused-respondent is running a Pakora shop at Chintpurni by using leaves of bhang. PW-1 Chandu Lal and one Gian Chand were associated and the shop of the accused-respondent was raided. Accused-respondent was apprised that whether he wants to be searched by some Gazetted Officer or by the same police party. After his agreeing, the shop of the accused-respondent was searched. During search, 26 fried cakes of bhang pakora were found and a gunny bag containing leaves of bhang, weighing 2 kg 750 grams, was also recovered. Six bhang pakoras and 250 grams bhang leaves were separated as sample, which were sealed separately and were taken into possession vide memo, Ex. PB. The bhang leaves taken in possession are Ex. P-1, tikkies are Ex. P-2, plate is Ex. P-3 and piece of cloth is Ex. P-4, while the samples are Ex. P-5 and Ex. P-6. Rukka, Ex. PF, alongwith ...3... case property was sent to police station through Constable Mukhtiar Singh (PW-3), in reference to which FIR, Ex. PG, was lodged. PW-6 Rulia Ram prepared the site plan, Ex. PM, sent special report to Superintendent of Police, Una, copy of which is Ex. PJ. After completion of investigation, accused- respondent was charged under Section 20 of the Narcotic Drugs and Psychotropic Substances Act and the case was committed to the Sessions Court. 4. In order to prove its case, prosecution examined as many as six witnesses, whereas, accused through his statement under Section 313 Cr.P.C. denied the prosecution case. 5. PW-2 Prithvi Raj, ASI was posted as Head Constable at P.S. Amb, and was present with PW-6 ASI, Rulia Ram, in the raiding party. PW-2 has materially corroborated the statement of PW-6 Rulia Ram. PW-1 Chandu Ram, alleged independent witness, stated that the shop of the accused- respondent was searched and tikkies of bhang and green leaves of bhang were recovered. PW-1 has partly corroborated the prosecution story, however, he was declared hostile and thereafter he admitted all the suggestions in regard to the option of search etc. Other independent witness, Shri Gian Chand, reported to have died. 6. On analysis of the prosecution witnesses and the ...4... material on record, we notice that no respectful person from the locality was associated in the present case during search and the testimony of PW-6 Rulia Ram shows that he was joined by Gian Chand and Chandu Lal, however, no attempt was made to associate the independent witnesses in the raiding party. Investigating Officer has stated that he has given option to the accused-respondent as to whether he is ready to be searched in presence of a Gazetted Officer or by the same police party. On his agreeing, search was made by the police party. However, accused-respondent consented to be searched by the police party. There is no mention of the words gazetted officer, as stated by the witnesses and there is no mention of the word 'Magistrate'. Such aspect also makes the prosecution story weak, as there is no mention that accused could have been searched before a Magistrate. Non- mentioning the entitlement of the accused-respondent to be searched before a Magistrate also makes the prosecution case doubtful. 7. We also took note of the fact that two independent witnesses said to have been associated in the raiding party, however, out of which one has died and another was declared hostile. The testimony of official witnesses is also contradictory, as there are different versions and the same is not inspiring confidence. ...5... 8. On analysis of the prosecution witnesses and the material on record, learned Sessions Judge, Una, has rightly arrived at the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt against the accused-respondent and we do not find any scope of interference in the judgment of the trial court. Appeal being devoid of merit is dismissed. 9. The Court appreciate the efforts made by Mr. Rajesh Verma, Advocate, in assisting the Court on behalf of accused-respondent as Amicus Curiae. (R.B. Misra) Judge (V.K. Sharma) Judge 20th September, 2010 (virender)