IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.338 of 1996. Dated of Decision: December 11, 2009. State of H.P. ……… Appellant. Versus Keshav Ram. ..…. Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?. For the Appellant : Mr. Ramesh Thakur, Asstt. Advocate General. For the Respondent : Mr. Rakesh Jaswal, Advocate. Surjit Singh, J (oral) : This appeal by the State is directed against the judgment dated 20th July, 1995 of learned Additional Sessions Judge, Shimla, whereby respondent Keshav Ram, who was charged with and tried for offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has been acquitted. 2. Facts on which the respondent was tried for the said offence may be summed up thus. On 29th October, 1994, around 12.30 p.m., when PW9 N.L.Chogal, Dy.S.P., Rampur, accompanied by PW8 Daljeet Singh Constable and PW6 Ram Nath Constable, was going in a government vehicle in Whether reporters of local papers may be allowed to see the judgment? 2 connection with the official duty, he received a secret information at a place called Nogli that a man with Charas had been going towards Rampur. He associated with him two independent witnesses, namely PW1 Rajiv Gupta and PW2 Brij Lal Gautam, who were present outside a Cafe, named and styled as Asha Café and proceeded towards Rampur. After he covered a distance of about 300-400 yards on foot, respondent was seen coming with a bag and a suite case. He was informed that it was suspected that he was carrying Charas and so, his search was required to be conducted and in case he so desired, search could be arranged in presence of a Magistrate or a Gazetted Officer of one of the notified departments, under Section 41 of the Narcotic Drugs and Psychotropic Substances Act. Respondent opted to be searched on the spot. The bag and suite case, which he was carrying, were searched and Charas which on weighment was found to be 18.500. Kgs., was recovered. One sample weighing 250 grams was separated. Sample was made into a parcel and the parcel was sealed with seal that produced the impression of letter ‘T’ of English alphabet. Bag and suite case were also sealed with the same seal. Search and seizure memo was prepared. Written report was sent to the SHO, Police Station Rampur, PW5 Ram Singh, for registration of the case, on the basis of which FIR Ex.PW5/C was registered. Case property was produced to PW5 Ram Singh, in his capacity as SHO of the area. He affixed his own seal, which 3 produced the impression of letter ‘S’ of English alphabet. After resealing the case property and the sample parcels, he returned the sample parcel to PW9 N.L. Chogal, Dy.S.P., who sent the same to the Chemical Laboratory on 2.11.1994, through Constable Shiv Singh (PW7). Chemical Examiner, vide report Ex.PW9/H, gave the opinion that the sample was of Charas as it contained 32.60% resin of cannabis and also cystolithic hairs were found in it. 3. Trial Court charged the respondent with offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act and on his pleading not guilty tried him for the said offence. Prosecution examined PW9 N.L. Chogal, Dy.S.P., PW8 Constable Daljeet Singh and PW6 Ram Nath, besides two independent witnesses, namely PW1 Rajiv Gupta and PW2 Brij Lal Gautam, to prove the search and seizure. PW1 Rajiv Gupta and PW2 Brij Lal Gautam, the alleged independent witnesses did not support the prosecution case. They stated that they were called to the office of the Dy.S.P., and made to sign certain papers. PW8 Daljeet Singh and PW6 Ram Nath constables, however, corroborated the testimony of PW9 N.L.Chogal, Dy.S.P. that the Charas was recovered from the respondent, which was contained in a suite case and a bag, when he was intercepted at a point on the National Highway, half a kilometer away from the Police Station, Rampur. 4 4. Learned trial Court acquitted the respondent, holding that mandatory provision of Sections 50 and 42 of the Act has not been complied with and also there were some contradictions in the testimony of PW9 N.L. Chogal, Dy.S.P., PW8 Daljeet Singh constable and PW6 Ram Nath constable. 5. We have heard the learned Assistant Advocate General as also the learned counsel for the respondent and gone through the evidence. 6. It has fairly been conceded by the learned counsel for the respondent that neither Section 50 nor Section 42 of the Act was attracted in view of the fact that the alleged recovery was effected not on personal search of the respondent and also because no building, conveyance or enclosed place had been searched. However, he submits that there is a major contradiction in the testimony of PW8 and PW9 with regard to site, where the respondent was allegedly apprehended and also the report of Chemical Examiner Ex.PW9/H does not stand connected with the stuff allegedly recovered from the respondent. 7. According to the testimony of PW9 N.L. Chogal, two independent witnesses, namely PW1 Rajiv Gupta and PW2 Brij Lal Gautam were associated by him from outside Asha Café and the respondent was apprehended after he alongwith the above named two independent witnesses and police officials accompanying him walked to a distance of 300- 400 yards. PW8 Constable Daljeet Singh, however, stated that 5 the respondent was apprehended outside Asha Cafe. This contradiction in the testimony of the two witnesses creates a reasonable doubt about the prosecution story that the respondent was apprehended while walking along the National Highway, with a suite case and a bag containing Charas. 8. We also find a great deal of merit in the submission that report Ex.PW9/H does not stand connected with the stuff allegedly recovered from the respondent. PW9 N.L. Chogal stated that he produced the sample parcel and the case property to SHO PW5 Inspector Ram Singh on 29th October, 1994 itself and that Inspector Ram Singh resealed the sample and the case property with his own seal. He further stated that after resealing the sample, Ram Singh returned the sample to him and he sent that sample to the Chemical Examiner, through constable Shiv Singh (PW7) on 2.11.1994. 9. PW5 Inspector Ram Singh stated that he put his own seal on the sample parcel and the case property and that the impression of the seal was ‘S’. PW7 Constable Shiv Singh also stated that he carried the sample bearing seal impressions ‘T’ and ‘S’ to the Chemical Laboratory and that the sample had been entrusted to him by PW9 N.L. Chogal. However, the sample, which was examined by the Chemical Examiner, per his report Ex.PW9/H was having seal impressions ‘T’ and ‘X’. The docket portion of Ex.PW9/H also shows that what was sent to the Chemical Examiner was a 6 sample bearing seal impressions ‘T’ and ‘X’. Sample of the Charas allegedly recovered from the respondent was supposed to bear the impressions ‘T’ of seal with which the sample was initially sealed by PW9 N.L. Chogal and ‘S,’ the impression of seal affixed by PW5 Ram Singh Inspector, at the time of resealing the parcel. Thus, report Ex.PW9/H cannot be said to pertain to the stuff allegedly recovered from the respondent. 10. In view of the above stated position, we are of the considered view that the judgment of the learned trial court does not call for any interference. Hence the appeal is dismissed. (Surjit Singh) Judge December 11, 2009. (Surinder Singh) (Pds) Judge.