HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 107 of 2003 Decided on: 9.11.2011 State of Himachal Pradesh ……… Appellant. Versus Hardev ………Respondent. 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: Mr.Rajesh Mandhotra, Deputy Advocate General. For the respondent: Ms.Vidushi Sharma, Advocate. Per V.K. Ahuja, J.: This is an appeal filed by State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the court of learned Sessions Judge, Chamba, dated 16.11.2002, vide which the respondent was acquitted of the charge framed against him under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the NDPS Act. 2. Briefly stated, the facts of the case are that on 24.1.2002, PW-2 ASI Kushal Kumar alongwith other police officials, namely, PW-3 Constable Ravinder Kumar, HHC Naresh __________________________________________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - Kumar and Constable Lokender Singh were present at TCP Tanuhatti in connection with official duty. At 9.30 a.m., a bus came from Chamba and when it reached at Tanuhatti Barrier, it was stopped and checked. One passenger was sitting all alone, who, on seeing the police officials, tried to hide a bag with a portion of his coat worn by him at that time. The bag was checked by PW-2 Kushal Kumar and there was another cloth having some material wrapped in it, which was smelling like charas. He alighted the said passenger, namely, the accused from the bus and asked him to sit inside the Police Post. He informed his superior officers, sent a ruka through HHC Shiv Singh to Superintend of Police, Chamba. Thereafter, PW-11 Ram Parsad, IO, came to the spot, the charas was weighed, which was found to be 1.7 kg. Two samples of 25 gms. each were taken, which were sealed and the signatures of the Driver and the Conductor were obtained. The recovered charas was taken in possession vide recovery memo and the recoveries were effected. Seal impressions were taken separately on a cloth and after completion of the investigation, the challan was filed before the learned trial Court, who tried the respondent under Section 20 of the Act. On conclusion of the trial, the learned trial Court acquitted the respondent of the charge framed against him. 3. We have heard Mr.Rajesh Mandhotra, learned Deputy Advocate General for the appellant and Ms.Vidushi Sharma, Advocate, for the respondent, and have gone through the record of the case. 4. The submissions made by the learned Deputy Advocate General appearing for the appellant-State were that - 3 - the guilt of the respondent was established beyond any reasonable doubt and the findings to the contrary are not sustainable and as such are liable to be set aside. 5. On the other hand, the learned counsel for the respondent had supported the impugned judgment for the reasons recorded therein. 6. On appraisal of the record of the case, it is clear that to substantiate their case, the prosecution had examined 14 witnesses. PW-2 ASI Kushal Kumar was the Incharge of the raiding party, which was at Tanuhatti Barrier and he alighted the respondent from the bus who was having a bag with him. He sent a ruka to the Police Station Ext.PW-2/A and requested the SHO to send the Investigating Officer. Thereafter, PW-11 ASI Ram Parsad came to the spot. He has nowhere stated that the bag was searched and the charas was recovered from it, which on weighment was found to be 1.7 kg. He states that he took two samples of 25 grams each and sealed them, but he was silent that the charas was recovered from the bag found in the possession of the respondent. Out of the three police officials, who were accompanying him, the prosecution has only examined PW-3 Ravinder Kumar, Constable, who does not state that these recoveries were effected in his presence and he only states that he took ruka Ex.PW-2/A to the Police Station on the basis of which the FIR Ext.PW-3/A was registered. 7. The prosecution has not examined Lokender Singh and Naresh Kumar, Constables, who were also on duty alongwith PW-2 ASI Kushal Kumar and in whose presence the recoveries may have been effected. The prosecution has also - 4 - examined PW-11 Ram Prasad, ASI, who took over the investigation from PW-2 Kushal Kumar, but in his statement also he has proved the statements of the witnesses recorded by him, which were exhibited but he nowhere states that he searched the bag or effected recoveries or theses recoveries had been effected by PW-2 Kushal Kumar and he handed over to him the accused as well as the recovered charas and the samples taken from the bulk. PW-11 Ram Parsad had further stated that he went to the spot and case file was handed over to him. He opened the bag and there was another bag inside and found the charas kept in the bag. He reached at the spot at 10.30 a.m. and the recoveries had been effected at 9.30 a.m. There is nothing in his statement that the bag was kept in safe custody before he reached the spot or with whom the bag was lying but has simply stated that these were handed over to him. 8. Apart from the above, the prosecution had examined PW-1 Sekhar Kumar, Constable, who brought the weighing scales at the spot. The prosecution has also examined PW-4 Shiv Singh, who had taken the special report to the SP office, Chamba, but he has not stated as to the copy of the said report taken by him at that time. PW-5 Lady Constable Reeta deposited the special report as per her statement, with Reader to the SP, Chamba and she has also not proved the said copy deposited by her in the office of S.P., Chamba. PW-6 Rakesh Kumar, Constable, was posted as Reader to SP, Chamba, who stated that the report Ext.PW-6/A was placed by him before the S.P., Chamba. PW-7 Ashok Kumar, MHC, has stated that the case property was deposited with - 5 - him alongwith sample seals and he sent the sample to the office of Chemical Examiner through Budhi Singh, Constable, who has been examined as PW-8 and has corroborated this statement. PW-9 Jatinder Kumar, SHO, has stated that he received the ruka and the case property was deposited by the ASI Ram Parsad with him containing 1.7 kg charas and two sample parcels alongwith seals. PW-10 Khub Ram is a formal witness, who had prepared the challan only. 9. PW-12 Raj Kumar is the Driver of the bus, who has stated that the bus was checked at the Barrier. One man was caught in the bus, but he cannot identify the accused nor he can state that on which seat the accused was sitting. He further stated that the person was dropped from the bus alongwith his articles and he does not know what was found from the possession of the passenger. He clearly stated that the search of the passenger was not conducted in his presence. He was declared as hostile and was allowed to be cross examined. The Conductor of the bus who was also associated has been examined as PW-14, who has stated that the police caught one person, who is the accused. He was having a bag with him. On checking, he does not know what were the contents thereof. He was also declared as hostile. Both these witnesses have nowhere stated that the accused was found sitting at seat No.17 or was found alone when the police apprehended him. The only witness to state these facts was PW-2 Kushal Kumar, who had not himself checked the bag or effected recoveries, which were effected later on by the another Investigating Officer. The Constables accompanying him were not examined to substantiate his statement and, - 6 - therefore, his solitary statement to this extent cannot be relied upon so as to hold the accused guilty of the charge framed against him. 10. The learned trial Court had acquitted the respondent mainly for the reason that there was no compliance of Section 50 of the Act, which was mandatory, which conclusion derived at is not correct since the recovery was effected from the bag kept by the accused and not from his personal search. However, the final conclusion drawn by the learned trial Court acquitting the respondent cannot be said to be perverse calling for an interference by this court. 11. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant-State, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. (Deepak Gupta), Judge. November 9, 2011 (V.K. Ahuja), (tilak) Judge.