IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.226 of 2005. Decided on: December 1, 2011. ____________________________________________________________ Varinder Kumar. ……..Appellant. Versus State of H.P. ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Naresh K. Thakur, Advocate with Mr. Ramesh Sharma, Advocate. For the respondent : Mr. P.M. Negi, Dy. Advocate General. _________________________________________________________ SURINDER SINGH,J (oral) : The challenge in this appeal is to the judgment of conviction and sentence passed by the learned trial Court in Sessions Trial No.69/04/04, dated 30.5.2005, for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, in short ‘the Act’, for allegedly keeping in his possession 710 grams of Charas, whereby the appellant, hereinafter to be referred as ‘the accused’ was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of `30,000/- and in default of payment of fine to further undergo Whether reporters of the Local papers are allowed to see the judgment? - 2 - imprisonment for one year, giving him the benefit of set off under Section 428 of the Code of Criminal procedure. 2. In nut-shell, the facts germane to the present appeal are that on 10th February, 2004, at about 2 P.M., police party headed by PW12 HC Kartar Singh had put a naqa between Ballu bridge and the place known as Parel. Around 2 P.M., when the police party was busy in checking a Scooter which came from the Ballu bridge side, they noticed a person emerging from the side of the said bridge, who seeing the police had tried to escape. He was overpowered by the police in the presence of PW1 Yogesh Kumar and PW2 Raju, independent witnesses present on the spot. The accused had covered himself with a Shawl. He was asked to remove the Shawl, to which he did and the police party observed that he was hiding something beneath his sweater put on by him. On his search, they took out a polythene envelope containing 710 grams of Charas, which was in the shape of balls and small sticks. (ii) The accused was detained alongwith alleged contraband. A ruqa Ext.PW9/A was - 3 - prepared and sent to Police Station Chamba, by PW12 aforesaid through PW3 C. Deepak Kumar for registration of FIR. Copy of the report was also sent to the Superintendent of Police, Chamba through PW4 C. Naresh Kumar for information. Thereafter, PW13 ASI Abhay Singh reached the spot. PW12 HC Kartar Singh prepared list of inventory Ext.PB, copy of Ruqa and case property alongwith accused were produced before him, it was then the recovered stuff was weighed in the presence of the above independent witnesses. (iii) Out of the recovered stuff, two samples of 25 grams each were separated and sealed with seal impression “A”. Remaining bulk was also sealed with the same seal. Sample of seal was also taken on a piece of cloth Ext.P3, which was signed by the witnesses. Seal after its use was handed over to PW1 Yogesh Kumar and case property was taken in possession vide memo Ext.PA, its copy was supplied to the accused free of cost. - 4 - (iv) PW13 Abhay Singh filled in the NCB forms in triplicate, one of which is Ext.PW11/A. Thereafter he prepared site plan Ext.PW13/A of the place of alleged recovery and recorded the statements of the independent witnesses. (v) The accused was arrested and grounds of arrest were informed to him in writing Ext.PC. (vi) On reaching the Police Station, case property alongwith accused were handed over to PW14 Inspector Khub Ram. He resealed the case property with seal impression “T” and resealed memo Ext.PW7/A was prepared. Thereafter the case property was deposited by him in the Malkhana with PW11 MHC Rajinder Singh. The accused was put in the lock-up. (vii) On 11.2.2004, one of the sample parcels was sent alongwith NCB forms and sample of seals through PW10 C. Sarwan Kumar vide RC No.21/2004 to CTL Kandaghat for its analysis. The report of the Chemical Examiner Ext.PW13/C on analysis found presence of cystolithic hair in the sample parcel and the beams alkaline test was positive. The resin to - 5 - the extent of 29.09 % in the recovered stuff was found present. Thus, the Chemical Examiner was of the opinion that the exhibit contained the contents of Charas, meaning thereby that the whole stuff was not Charas. 3. After completing the challan, it was presented in the Court for the trial of the accused. He was accordingly charge-sheeted for the offence aforesaid, to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure. The circumstances which were found attendant upon him were put, to which he denied. He maintained his innocence. According to him, he was roaming in the Chamba Bazaar from where the police took him in custody and obtained his signatures under pressure on the various documents. Learned trial Court disbelieved his defence, but while relying upon the testimonies of the official witnesses convicted and sentenced the accused, as aforesaid, hence the present appeal. 4. Heard and gone through the evidence on record. - 6 - 5. At the very outset, I would like to say that both the independent witnesses PW1 Yogesh Kumar and PW2 Raju did not support the case of the prosecution, thus they were declared hostile. Insofar as the statements of the official witnesses are concerned, these are quite contradictory to each other with respect to the recovery of the alleged contraband from the possession of the accused. 6. PW3 C. Deepak Kumar who was present and a witness of alleged recovery categorically stated that the accused had covered himself with Shawl. The Shawl was got removed, then they noticed that the accused had kept concealed something hard beneath the Sweater worn by him. He stated that thereafter PW12 HC Kartar Singh conducted personal search of the accused and a polythene envelope was recovered, which contained Charas. The same story has been put to the hostile witnesses aforesaid by the learned Public Prosecutor. Even in cross-examination he categorically stated that there was no pocket inside the Sweater worn by the accused but the accused had kept this pocket concealed around his body covered with Sweater. Similar statement is made by - 7 - PW4 C. Naresh Kumar, but PW12 HC Kartar Singh had a different story to tell contrary to the above witnesses. He stated that on capturing the accused, he was asked to remove Shawl and observed that he had concealed something inside the Sweater worn by him, thereafter he asked accused to take out the concealed material, who produced an envelope containing Charas. He did not seal the case property, rather he waited till PW13 ASI Abhay Singh arrived at the spot, though he had sent the Ruqa Ext.PW9/A to the Police Station informing them about the said recovery. The perusal of the Ruqa shows overwriting/ tampering at point “A” with respect to its time. Further, the perusal of the recovery memo Ext.PA also reveals that there was no reference to the presence of the alleged independent witnesses. PW12 did not say having prepared the recovery memo. According to him, it was prepared by PW13 ASI Abhay Singh, but Abhay Singh in his cross-examination stated that it was prepared by HC Kartar Singh before his arrival. 7. Therefore, on the critical examination of the aforesaid evidence, two things very clearly emerge:- - 8 - (i) that there is a material contradiction in the statement of prosecution witnesses qua alleged recovery of the contraband from the person of the accused, one set of the witnesses stated that it was accused who produced it on having been asked as to what he had kept concealed under the Sweater and another set of official witnesses stated that it was recovered on the personal search of the accused by HC Kartar Singh ; AND (ii) The fact which goes to the root of the case is contradiction with respect to the preparation of the seizure memo Ext.PA. PW13 ASI Abhay Singh stated that it was prepared by PW12 HC Kartar Singh whereas HC Kartar Singh shifted the stand by stating that it was PW13 ASI Abhay Singh, who prepared it. 8. Insofar as the first point is concerned, if the recovery of the contraband is effected from the personal search of the accused, in that event the compliance of Section 50 of the Act is a sine quo non in view of the Constitutional Bench judgment of Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gujarat [ (2011) 1 SCC 609 ], which was also subsequently followed in Narcotics Control Bureau v. Sukh Dev Raj Sodhi [ (2011) 6 SCC 392 ]. It is well settled - 9 - that the non-compliance of this mandatory provision vitiates trial. In the case in hand, the official witnesses contradicted sharply with respect to recovery as aforesaid making the case absolutely doubtful. 9. Therefore, for the afore-stated reason, the conviction and sentence passed by the learned trial Court is set-aside. Accordingly, the appeal is allowed and accused is acquitted by giving him the benefit of doubt. His sentence was suspended vide order dated 10.6.2005 by this Court and is on bail, therefore the bonds executed pursuant to the aforesaid orders, are hereby discharged. The fine amount, if any, already deposited be refunded to the accused. 10. Send down the records. December 1, 2011. (Surinder Singh), (Pds) Judge.