IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.: 390 of 2002 Date of Decision: 26.12.2011. State of Himachal Pradesh. …Appellant. Versus. Kumari Sheetal Sharma @ Sita daughter of Shri Leela Kant Sharma, resident of Nepal at present residing near High School, Behang, Tehsil Manali, District Kullu, H.P. …Respondent. Criminal Appeal under Section 378 of the code of Criminal Procedure. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for Reporting? No. For the Appellant-State: Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent: Mr. Dharamvir Sharma, Advocate. Per Deepak Gupta, J.(Oral). 1. This appeal by the State is directed against the judgement dated 1.3.2002 passed by the learned Sessions Judge, Kullu, in Sessions trial No. 87/2001 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 NDPS Act). 2 2. The prosecution case, in brief, is that on 5.7.2001 PW-9 H.C. Bhim Sen accompanied by PW-7 constable Pawan Kumar, constable Teja Singh and lady constable Harshlata was standing on checking duty outside the hotel Kenilworth on National Highway-21 at Manali. At about 4.25 p.m they stopped a bus bearing registration No.HP-01-1709 belonging to Monal travels. This bus was going from Manali to Delhi. First the luggage of the passengers of the bus was checked and nothing was found. Thereafter, they found that a lady was sitting in the cabin of the bus and she had kept a rucksack between her legs. On inquiry this lady disclosed her name as Kumari Sheetal Sharma. Thereafter, in the presence of the driver of the bus (PW-1) and conductor of the bus (PW-2), the rucksack was opened. It contained another small rucksack. On opening the smaller rucksack four small polythene packets were found. These contained charas. On weighment the entire charas was found to be 3.600 kilograms. From the charas so recovered, three samples of 25 grams each were separated and thereafter these three samples and remaining bulk charas were sealed in separate cloth packets bearing seal impression ‘T’. NCB form was filled up and the case property was taken into possession vide memo 3 Ext.PA. Other codal formalities were completed at the spot. Ruka Ext.PW-3/A was sent through PW-7 to the Police Station on the basis of which F.I.R. Ext.PW-3/B was registered. After completing the formalities at the spot the case property was produced before PW-5 Inspector Roshan Lal, who resealed the same with seal bearing impression ‘H’. Thereafter one of the samples was sent to the CTL Kandaghat and on chemical analysis vide report Ext.PW-5/B the sample was opined to be that of Charas having resin contents of 35.40%. On the aforesaid material the accused was charged with having committed an offence punishable under Section 20 of the Act. After trial, she has been acquitted. Hence, this appeal by the State. 3. The prosecution was required firstly to prove that the contraband was recovered from the conscious possession of the accused. No doubt, PW-9 and PW-7 have supported the prosecution version but the independent witnesses i.e. driver and conductor of the bus have turned totally hostile. The case of the prosecution is that the accused was sitting in the separate portion i.e. cabin of the bus which was separated from the other portion where the passengers were sitting. The driver denied that any person was sitting in the cabin of the bus. According to him the 4 accused was not sitting in the cabin and in his presence no recovery was made from the accused. In fact he states that when the police checked the bus they found a bag lying on the luggage rack. The police officials took it to the police station and after 10 minutes they called him to the police station and told him that the bag contained charas. According to PW-2 Jit Lal the bus was parked in the Potato ground at Manali and when they were about to start 3-4 passengers entered the bus. Out of these passengers three were females. He also states that all the passengers sat inside the bus and not in the cabin of the bus. He denied that he had made any statement to the police. 4. No doubt both these witnesses have admitted that their signatures appear on the recovery memo Ext.PA but according to them these signatures were taken in the police station when they were called there. They both denied that the memos were read over to them. Most importantly, a suggestion has been put to both these witnesses by the prosecution itself that they were in league with the accused and had permitted her to sit in the cabin without issuing any ticket. If that be so, then it was imperative upon the prosecution to have associated with the recovery some other independent witnesses. When a packet is recovered from a cabin of 5 the bus, which is the case of the prosecution, then suspicion will fall only on the person if any sitting in the cabin or on the other person(s) who have access to the cabin, i.e. conductor and driver of the bus. Even if they were not arrayed as accused the prosecution should have associated other independent witness. We are saying this because of the reason that the search was conducted in the heart of Manali town. Admittedly, the search was conducted in the afternoon and there was no reason why other independent witnesses who belonged to the area in question were not associated. 5. The law by now is well settled that police officials are as good witnesses as independent witnesses. Merely because they are police officials is not a ground to doubt their testimony. 6. However, when independent witnesses turn hostile then the prosecution should examine most, if not all the police officials associated with the search of the accused. Two of the police officials belonging to the police party were not examined and no reason has been given for the same. In this case the recovery was made from the bag and personal search was not being done but even then since the bag of the lady was searched and a lady constable was present it would be a natural course that the lady constable would have carried out 6 the search and her examination was very material. She, as already stated above, has not been examined. 7. It would be pertinent to mention that the prosecution story is entirely based on the version that the accused was sitting in the cabin of the bus. PW-9 while appearing in the witness box has not stated that accused was sitting in the cabin of the bus. 8. Another serious lacuna in the prosecution case is that according to prosecution the accused had kept between her legs a large rucksack, inside which there was a smaller rucksack. From the smaller rucksack four polythene packets were recovered which allegedly contained the charas. If there were four packets then either the samples should have been taken from each packet or the contents of the four packets should have been mixed together in such a manner that they formed one homogeneous mixture. None of the witnesses has stated as to how the sampling was done. When there were four packets of charas it is not clear whether the sample was taken from one packet or from separate packets. Even the weight of each packet has not been disclosed. Therefore, it would not be proper to convict the accused on the basis of such sampling. 7 9. In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. The bail bonds are discharged. ( Deepak Gupta ) Judge. 26th December, 2011 ( V.K.Ahuja ) ™ Judge.