IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A. Nos. 142 & 144 of 2000. Date of decision: 9.11.2010. 1. Cr.A. No. 142 of 2000. State of H.P. ….. Appellant. Vs. Phool Maya …. Respondent. 2. Cr.A. No. 144 of 2000. State of H.P. ….. Appellant. Vs. Puran Bahadur …. Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the appellant(s) : Mr. R.K.Sharma, Senior Additional Advocate General. For the Respondents : Mr. R.K. Gautam, Senior Advocate with Mr. Mehar Chand, Advocate. R.B. Misra, Judge (Oral). Both the criminal appeals have come up for consideration after leave to appeals under Section 378 (3) of the Code of Criminal Procedure, have been granted in reference to the impugned judgements and orders dated 6.12.1999, passed by learned Special Judge, Kullu, District Kullu, in Sessions Trial Nos. 8 of 1999 and 6 of 1999 acquitting the alleged accused-respondents, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, NDPS Act), in reference to FIR Nos. 471 and 470 of 1998. Whether the reporters of the local papers may be allowed to see the Judgment? …2… 2. The prosecution case is that on 9.11.1998 when SI Rulia Ram was on patrol duty alongwith other police officials and was going towards Tibetan Colony at 1.00 p.m. observed one Nepali lady coming with a bag. On seeing the policy party, she tried to escape. The police on suspicion made an inquiry from her, she disclosed her name as Phool Maya. SI Rulia Ram asked her to give consent for her search in presence of the witnesses and on obtaining her consent, search of her bag was made and four tin container containing charas were recovered and on weighing it was found 3 Kg. 550 grams, out of which two samples of 25 grams each were taken and were sealed alongwith the remaining quantity of charas at the spot and seal was handed over to Rajinder Sharma. After filling up NCB form and after completion of investigation, the accused-respondents were charged for offence under Section 20 of N.D.P.S. Act. 3. In order to prove its case, the prosecution examined as many as ten witnesses in Criminal Appeal No. 142 of 2000 and 11 witnesses in Criminal Appeal No. 144 of 2000, whereas, the accused- respondents through their statements under Section 313 Cr.P.C. denied the prosecution case. 4. While the prosecution examined PW 1 Mohar Dass, PW 2 Rakesh Kumar, PW 3 Rajinder Sharma, PW 4 Dorje Ram, PW 5 Rikhi Ram, PW 6 Sato Kumar, PW 7 Mahesh Kumar, PW 8 Nihal Singh, PW 9 Diwan Singh and PW 10 SI Rulia Ram, the two prosecution witnesses, namely PW 2 Rakesh Kumar and PW 3 Rajinder Sharma, have, however, not supported the prosecution case by indicating that the …3… consent of the accused- respondents before their search and recovery of contraband was not taken. They have also not supported the recovery of any contraband from the bag of the accused- respondents. They have also not supported the sealing of samples by the police at the spot. PW 10 SI Rulia Ram in his cross- examination, has stated that police has recovered from her husband, who was apprehended at the same spot, but there is nothing on record to show why the police has splitted three cases regarding the recovery of charas and opium from three persons on the same day from the same spot. 5. Surprisingly, the police has recorded three FIRs, namely, FIR No. 469/98, 470/98 and 471/98 under Section 20 of N.D.P.S., Act. The police has simply changed the time about the arrest of the accused-respondents and introduced different independent witnesses in all the three cases. Surprisingly, the independent witnesses in three cases have not supported the prosecution case. The official witnesses have admitted that on that day three cases were registered against the accused persons. PW 8 Shyam Singh and PW 9 Nihal Singh have categorically admitted to this effect in Sessions Trial No. 7 of 1999 titled State vs. Jiwan Pun. 6. PW 8 LHC Shyam Singh has clarified that Kullu police has recovered charas and opium from two Gorkha and one female from the same spot and that first of all accused Jiwan Pun was apprehended and thereafter accused Puran and in last the female accused was apprehended. The three persons were apprehended by the same police officer i.e. SHO Nihal Singh, but surprisingly said SHO instead of …4… carrying out the entire investigation of three cases himself has splitted the cases and recorded three F.I.Rs. 7. The connected case Sessions Trial No. 7 of 1999 titled State vs. Jiwan Pun has been investigated by S.H.O. Nihal Singh, in which the police has associated PW 4 Prem Dass and PW 5 Ashok Kumar as independent witnesses, who, however, have also not supported the prosecution case. In the connected appeal, being Cr. A. No. 144 of 2000, arisen from of FIR No. 470 of 1998 registered against accused Puran Bahadur, the police has introduced two independent witnesses, namely PW 5 Rajinder Sood and PW 9 Ajay Sharma and in both the cases the SHO Nihal Singh has used the same seal “T” and in all the three cases FIRs were recorded by SI Dorje Ram. 8. In the facts and circumstances of the case, the prosecution in our considered view has not been able to prove its case against the accused-respondents beyond reasonable doubt, more so when the two independent witnesses have not supported the search and recovery of contraband from the bag of accused-respondents. The prosecution story regarding search and recovery of alleged contraband from the accused-respondents is totally doubtful. Therefore, in the facts and circumstances, both the appeals being devoid of any merit are dismissed. The bail bonds of the accused-respondents are discharged. ( R.B. Misra ), Judge. November 9, 2010. ( Kuldip Singh), (Hem) Judge. …5… IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. A. No. 144 of 2000. Date of decision: 9.11.2010. State of H.P. ….Appellant. vs. Puran Bahadur …. Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?2 For the appellant : Mr. R.K.Sharma, Senior Additional Advocate General. For the Respondent : Mr. R.K. Gautam, Senior Advocate with Mr. Mehar Chand, Advocate. R.B.Misra, Judge (Oral) For judgement, see judgement of date rendered in Cr. A. No. 142 of 2000, titled State of H.P. vs. Phool Maya. ( R.B. Misra ), Judge. November 9, 2010. ( Kuldip Singh), (Hem) Judge. Whether the reporters of the local papers may be allowed to see the Judgment?