IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 375 of 1996 Date of Decision : March 29, 2010 State of Himachal Pradesh Appellant Versus Chet Ram Respondent Coram: Hon’ble Mr. Justice Deepak Gupta, Judge Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vivek Thakur, Additional Advocate General for the appellant. For the respondent : Mr. Baldev Singh Atri, Advocate, for the respondent. Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 17.8.1995 passed by the learned Sessions Judge, Shimla in Sessions Trial No. 44-S/7 of 1993 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 Briefly stated the prosecution case is that on 22.12.1992 ASI – Parmod Shukla (PW-8) was present near the State Bank of India, Shimla. One person was found coming towards the Mall Road carrying a bag on his shoulder. On seeing the police the accused tried to turn back. This aroused the suspicion of the police official and the accused was overpowered. Thereafter, two independent witnesses Sh. Mahender Pal and Sh. Resham Singh who were present there were associated and consent of the accused was procured for his search vide Ext. PW 8/A. The bag was searched and from this bag 475 grams of Charas was recovered. Out of the recovered Charas two samples of 50 grams each were drawn. Thereafter the Charas and the samples were duly sealed with seal – ‘YR’ and was taken into possession vide memo Ext. PW 2/A. Rukka Ext. PW 3/A was sent to the police station for registration of the case. Spot map Ext. PW 8/C was prepared. The accused was informed about the grounds of arrest and was arrested and the special report Ext. PW 1/A was handed over to Dy. S.P. Chander Shekhar (PW-1). Thereafter, the other codal formalities were completed and the investigation completed. One of the samples was sent to the C.T.L., Kandaghat and report Ext. PX was received which showed that the sample was that of Charas. On this basis challan was filed. After trial the accused has been acquitted. Hence the present appeal. The learned Trial Court has acquitted the accused on the grounds that the provisions of Section 42 and 50 of the Act have not 3 been complied with. In our considered view neither Section 42 nor Section 50 of the Act are applicable to the facts of the case. This is not a case of prior information. Furthermore, recovery was made in a public place and therefore also Section 42 of the Act would not apply. Recovery was made from a bag and not the person of the accused and therefore Section 50 of the Act is also not applicable. Therefore, we have gone into the merits of the case itself. A very astounding feature of this case is that PW-8 does not mention who were the other police officials, if any, accompanying him. Who took the ‘rukka’ to the police station? PW-3, who was the MHC, at the relevant time only states that he received ‘rukka’ on 22.12.1992 but does not state that who had brought the ‘rukka’ to him. The Investigating Officer (PW-8) does not state whether there were any other police officials with him when he apprehended the accused near the State Bank of India. The second aspect of the case which casts a grave doubt on the prosecution case is that both the so called independent witnesses had no business or reason to be near the State Bank of India. One of them runs a vegetable shop near Police Station, Sadar at Sabji Mandi, Shimla and the second one is doing lottery business in Lower Bazar. What were they doing near the State Bank of India at the relevant time? They appear to be just chance witnesses. It is not as if responsible independent witnesses were not available near the State Bank of India. This office is situated on the Mall Road and within the State Bank of India itself there would have been number 4 of officials present who could have been associated as witnesses. The Investigating Officer does not state that he made any efforts to associate any person from the State Bank of India or the surrounding shops and houses to be witnesses to the proceedings. The link evidence in this case is also missing. According to PW-8 he sealed all the three parcels with seal- ‘YR’. PW-1 states that he resealed the case property with seal-‘T’. But in cross examination he only talks of one packet and not of three packets. However, even if we ignore this aspect of the matter the fact is that PW-1 told PW-8 to get the case property deposited in the Maalkhana. PW-3 who was the MHC states that the case property was handed over to him by PW-4, was kept in the Maalkhana but this witness has neither produced the Maalkhana register nor any other document to prove this fact. PW-5 took the sample from the Maalkhana to the C.T. L. Kandaghat. He in no uncertain terms states that he was entrusted with one sample parcel alongwith CFSL form and one other paper which was the road certificate. The road certificate has not been proved. This witness does not state that the sample seal impression was handed over to him. If the sample seal impression was not handed over to him, with which seal did the officials in C.T.L. Kandaghat compare the seals on the sample parcel as stated by them in the stamp affixed on the report Ext. PX? Thus the link evidence is also missing. 5 One of the independent witnesses has not at all supported the prosecution and according to him he was made to sign the documents in the police station. The other independent witness has partly supported the prosecution case but again no reliance can be placed on his statement since according to him by the time he reached the spot the bag was in possession of the police and was not held by the accused. In view of the above discussions, we find that the prosecution has miserably failed to prove that Charas was recovered from the exclusive possession of the accused and also failed to link the report of the C.T. L. Kandaghat with the drug seized. In view of the above discussions the appeal is dismissed though the grounds of acquittal are totally different from those taken by the learned Trial Court. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Sanjay Karol), Judge. March 29, 2010 (PK)