IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 57 of 2007. Judgment reserved on: 10.4.2009 Date of decision: 18.4.2009 State of H.P. …. Appellant Versus Ogarek Bruno Michel Louis ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice V.K.Ahuja, J. Whether approved for reporting ? No For the appellant: S/Shri R.M.Bisht and Rajesh Mandhotra, Dy.Advocate Generals for the appellant For the respondent: Mr.Ajay Kochhar, Advocate for the respondent _____________________________________________________ Deepak Gupta, J. This appeal is directed against the judgement of the learned Special Judge (Fast Track Court), Kullu in Sessions Trial No. 7 of 2006, decided on 20.11.2006 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 ‘Act’). 2 Briefly stated the facts of the case are that on 23.8.2005, PW/9 S.I Joginger Singh alongwith HHC Chander Parkash and Constable Kuldeep Singh were on patrolling duty near Tahuk bridge. One ASI Gian Chand, PW/8 who had been deputed by the S.P, Kullu to trace out one missing Israeli national, namely, Denial per chance met the patrolling party near Tahuk bridge. When this party was about 50-60 yards from the bridge, one person was seen coming from Pulga side carrying a brown bag on his shoulder. On seeing the police party, the said person got perplexed. This aroused the suspicion of the police officials and the accused was questioned by PW/9 as to from where he was coming. He did not give any satisfactory reply. However, he disclosed his identity and stated that he had been residing in Rain Bow Family Guest House at Kasol and in the house of Ganga Ram at village Chalal. PW/9 S.I Joginder Singh became suspicious as to what the accused was carrying. He asked HHC Chander Parkash to locate some independent witnesses from the nearby place. Chander Parkash returned after 15 minutes stating that he could not find any independent witnesses. Thereafter, the police officials, i.e., HHC Chander Parkash, Constable Kuldeep Singh and ASI Gian 3 Chand were associated as witnesses. The accused was apprised of his rights and search was conducted. When the bag carried by the accused was searched, it was found to contain 4 wooden boxes wrapped in newspaper. The said boxes had been tied up with the help of cello tapes. The wooden boxes were broken with a stone and each box was found containing Charas in the shape of ‘Chapati’. On weighing, the charas was found to be I kilogram and 300 grams. Two samples of 25 grams each were separated and sealed in separate parcels. The bulk charas and the two samples were sealed with seal impression ‘H’. NCB form was filled in and after completing the formalities, the seizure memo Ex.PC was prepared. The accused refused to sign the same and wrote in his hand that he is innocent. Thereafter, the accused was apprised of the commission of an offence and arrested. Other formalities were completed. The case property was deposited at Police Station, Kullu with PW/6 SHO Badri Singh who resealed the three parcels. Thereafter, the case property was deposited in the Malkhana through MHC Rup Singh (PW/4). Entries were made in the Malkhana register. On the next day, i.e., 24.8.2005, one sealed sample alongwith sample seals, 4 NCB form etc. were sent through PW/5 constable Lal Singh to C.T.L., Kandaghat. The C.T.L. sent its report Ex.PQ opining that the sample was of charas and thereafter, challan was filed against the accused. On appearance the accused pleaded not guilty and claimed trial. The learned Trial Court has acquitted the accused and hence the present appeal. We have heard Shri Ram Murti Bisht, learned Deputy Advocate General for the State-appellant and Mr.Ajay Kochhar, learned counsel for the accused. There are some glaring contradictions in the statements of the three witnesses PW/1 constable Kuldeep Singh, PW/8 ASI Gian Chand and PW/9 S.I Joginder Singh. HHC Chander Parkash has not been examined. According to PW/1 constable Kuldeep Singh, ASI Gian Chand was a part of the patrolling party. However, PW/8 ASI Gian Chand states that he was not a part of the patrolling party but by chance had met the police officials near Tahuk bridge. All the witnesses speak as one with regard to the manner in which the accused was apprehended and the charas recovered. However, on closer examination, it is apparent that there are serious contradictions in their statements which belie the 5 prosecution story. There is no explanation forthcoming as to why PW/1 and PW/9 claimed that ASI Gian Chand was a member of the patrolling party whereas ASI Gian Chand clearly states that he had been deputed to trace out the Israeli national Denial and had met the police party by chance. In addition thereto another very important lacunae in the prosecution case is that admittedly the respondent is a French national. He does not know Hindi. He however, knows English. The documents with regard to the search and seizure have been prepared in Hindi. By whom the documents were explained in English to the accused is not clear? According to PW/1, the accused was questioned by PW/9 S.I Joginder Singh in English language. He states that he is a matriculate and knows the English language. PW/8 ASI Gian Chand also states that the accused was questioned by PW/9 Joginder Singh in the English language. However, Joginger Singh totally denies the fact that he had questioned the accused. According to PW/9 the accused was questioned first of all by ASI Gian Chand in the English language. PW/9 states that he is not well conversant with the English language and ASI Gian Chand is having good command on English language 6 and, therefore, ASI Gian Chand questioned the accused. These are totally unexplained contradictory stands taken by these two witnesses. PW/1 Kuldeep Singh has stated that Tahuk village is located close to the place of occurrence and it takes about 10 minutes to reach Tahuk village from Tahuk bridge. PW/1 clearly states that there are more than 36 families living in this village. However, PW/8 ASI Gian Chand states that Tahuk is not inhabited by 36 families and he has also denied that it takes only 10 minutes to reach Tahuk village. Therefore, there are two versions regarding the location and place of occurrence. This indicates that either the witnesses were not present at that time on the spot or the search or seizure was not carried out on the spot. The occurrence took place at about 6 p.m. in the month of August. Both PW/1 and PW/9 have admitted that Tahuk village is only at a distance of 10 minutes from the bridge. No independent witnesses were associated with the search. The explanation given is that HHC Chander Parkash was deputed to find out independent witnesses but he returned after 15 minutes and stated that he could not trace out any independent witnesses. This version cannot 7 be believed. The prosecution for reasons best known to it has failed to examine HHC Chander Parkash. He could have been the best person to depose as to what efforts he made to find independent witnesses. The evidence of the other witnesses is hear-say and cannot be relied upon. Tahuk village admittedly is only at a distance of 10 minutes’ walk from the bridge. There is no explanation as to why HHC Chander Parkash did not go to Tahuk village in order to bring independent witnesses who could have been associated with the search and seizure. Keeping in view all the aforesaid points into consideration, the learned Trial Court rightly acquitted the accused. We find no reason to interfere in the well reasoned judgement passed by the learned Trial Court. The appeal being without merit is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge April 18, 2009 (V.K.Ahuja) (m) Judge