IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 200 of 2003 Date of Decision : September 23 , 2011 State of Himachal Pradesh Appellant Versus Kasim Deen Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vivek Thakur, Addl. Advocate General for the appellant-State. For the respondent : Mr. Ramesh Sharma, Advocate, vice Mr. Naresh K. Thakur, Advocate, for the respondent/accused. Justice Sanjay Karol, J (Oral) For an offence, which is alleged to have been committed on 29.9.2001, accused was put to trial. In terms of judgment dated 14.2.2003 passed by the learned Sessions Judge, Chamba Division, Chamba, H.P., in Sessions Case No. 46/2001, titled as State of H.P. versus Kasim Deen, accused stands acquitted of the charged offence. Whether reports of Local Papers may be allowed to see the judgment? 2 2. As per the case of the prosecution, on 29.9.2001 police party headed by SI-Sukhdev Sharma (PW-9), constables Latif Mohammad (PW-5), Naresh Kumar, Kamal Kishore (PW- 10), Indra Devi, Gulam Nabi, Rakesh Bali (PW-4) and Muni Raj were on routine traffic duty at village Koti, Police Station Sadar, Chamba. There they were checking the vehicles. At about 6.30 p.m. a bus bearing No. HP 48-0851 which was coming from Salval and going towards Chamba was stopped by them. Police officials entered the bus and saw accused Kasim Deen sitting on seat number 24, carrying a bag with him. The same was opened and charas kept in a polythene bag which was wrapped in a shirt was recovered from the bag. Also contraband substance in the shape of sticks and balls wrapped in a dupatta were found. The entire charas was seized vide seizure memo (Ext. PW 1/B). The same was weighed and found to be of 2.5 kilograms. Two samples of 20 grams each were drawn and sealed. Ruka (Ext. PW 9/A) was sent to Police Station, Chamba for registration of the case where F.I.R. No. 205/01 (Ext. PW 8/A) dated 29.9.2001 was registered against the accused. The accused was arrested vide memo (Ext. PW 9/C). Proceedings on the spot were completed and report sent to Superior Officer. Contraband substance was deposited at the police station and further sent for chemical examination along with NCB form 3 (Ext. PW 8/D) and report of the Chemical Examiner (Ext. PW 8/D) obtained. With the completion of investigation challan was presented in the Court for trial. 3. The accused was charged for having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) to which he did not plead guilty and claimed trial. 4. In order to prove its case, prosecution examined ten witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded in which he took up a defence of false implication. 5. The Court below acquitted the accused for the charged offence. Hence the present appeal. 6. In order to prove that the contraband substance was recovered from the conscious possession of the accused, testimonies of independent witnesses Sh. Jitender Kumar (PW- 1) and Sh. Sardar Mohammad (PW-2) and police officials C- Rakesh Kumar (PW-4), C-Latif Mohammad (PW-5), SI-Sukhdev Sharma (PW-9) who carried out the investigation and another constable Kamal Kishore (PW-10) have been relied upon by the prosecution. 7. Close scrutiny of statements of independent witnesses i.e. PW-1 and PW-2 reveal that they have not 4 supported the prosecution. Further in spite of extensive and exhaustive cross examination, nothing could be elicited from their testimonies which would show that either they have deposed falsely or favoured the accused. In unequivocal terms both of them have deposed that contraband substance was not recovered in their presence. In fact PW-1 has deposed that he signed the documents at Police Station Sadar, Chamba where he was called thrice by the police. Neither were the documents read over nor were the contents thereof explained to him by the police. To this effect is also the testimony of PW-2. 8. We also find that Sh. Anil Kumar (PW-3) has also not supported the prosecution. He has denied that any scales were brought from his shop by the police for the purposes of weighing the contraband substance allegedly recovered from the accused. 9. It is a settled position of law that prosecution case cannot be dismissed solely on the ground that independent witnesses have not supported the prosecution. However, in the instant case we find that testimonies of the relevant police officials also do not inspire confidence. There are not only material contradictions but their version stands otherwise uncorroborated from the other piece of evidence. 5 10. According to PW-5, PW-9 and PW-10, accused was searched and charas recovered from him while he was sitting inside the bus. It was only thereafter that he was made to alight from the bus. Now this version stands materially contradicted by PW-4 who states that the accused was not searched inside the bus. According to him, PW-9 made the accused alight from the bus along with the other passengers and only thereafter the search took place. This material contradiction remains unexplained on record. It raises doubt about the place of recovery of charas. 11. Further according to PW-4, accused alone was sitting on seat No. 24 and the other two adjoining seats i.e. seat numbers 22 and 23 were lying vacant, which version stands materially contradicted by PW-5 according to whom all the three seats i.e. seat numbers 22, 23 and 24 were occupied by the passengers. Who were these persons? Why were they not associated at the time of search has not been explained. 12. Further according to PW-4, PW-9 had issued notice before carrying out the search and seizure operation. But then there is no such notice on record. This version stands contradicted by PW-5 who has deposed that no notice was ever given. In this regard PW-10 has feigned ignorance and stated 6 that he is not aware as to whether any notice was issued by PW-9 to the accused before carrying out search or not. 13. There is also contradiction with regard to the exact place where the accused had kept the bag. According to PW-4 accused had carried the bag around his neck, whereas, according to PW-5 and PW-10 the bag was kept by the accused on his lap. Contradiction though minor, acquires significance when viewed in totality. 14. Further, PW-5 states that he entered the bus from the rear door while all other police officials entered the bus from the front door. But according to the version given by PW- 4, it was he and PW-9 who had entered the bus from the rear door. In this regard PW-10 has a different version. He states that it was he who had in fact caught and searched the accused. 15. These contradictions render the prosecution version to be extremely doubtful if not false. Thus on the basis of prosecution evidence it cannot be said beyond reasonable doubt, that the police had recovered charas from the conscious possession of the accused. 16. 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 versus Public 7 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 person 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. (Justice Deepak Gupta), Judge. (Justice Sanjay Karol), Judge. September 23 , 2011 (PK)