1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 629 of 2000 Decided on September 29, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Padma Ram ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr.R.K. Sharma,Senior Additional Advocate General, with Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr. H.K.S. Thakur, Advocate. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 21.6.2000, passed by Learned Additional Sessions Judge, Shimla, H.P., in Sessions Trial No.3-S/ 7 of 2000 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), acquitting the alleged respondent-accused. 2. The prosecution case is that on 15.11.1999, PW.5 Head Constable Het Ram, Police Station, Sadar, Shimla was on his way to Ghora Hospital side alongwith Constable Anil Kumar in connection with the investigation of a case registered vide FIR No.268/1999 under Section 379 and 457 of the Indian Penal Code and when he reached at Ganj Bazar, the accused was 2 found sitting with a bag on the stairs of the building belonging to M/S Roop Chand Sohan Lal. On seeing PW.5 and the Constable, the accused-respondent tried to hide the bag in the backside. On suspicion, PW.5 conducted the search of the bag of the accused-respondent, after apprising him whether he wants to be searched by the police officials or by a Magistrate or the Gazetted Officer and on his agreeing, search was made before two independent witnesses Kishori Lal and Ganga Singh and 110 grams of charas was recovered. Out of recovered charas two samples of 25 grams each were separated and sealed into two parcels with seal 'S' and sent the same for chemical examination. 3. After investigation, respondent-accused charged for the offence under Section 20 of the 'NDPS Act'. In order to prove its case, the prosecution has examined as many as 6 prosecution witnesses, whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case and shown his innocence. 4. Independent witness Ganga Singh was left over for the reasons best known to the prosecution and PW.4 Kishori Lal, the star witness of the prosecution, has stated that at the relevant time he alongwith Ganga Singh going to Ganj Bazar, noticed accused-respondent sitting on the stairs case and after conducting the search of the bag of the accused-respondent, contraband articles were recovered and taken into possession by the police in his presence. However, in cross-examination, Kishori Lal (PW.4) has stated that he is dealing in the business of 3 selling rags (old clothes) at Ganj Bazar. However, he has denied that he has appeared as witness on 5-6 occasions in such like cases. PW.4 has further stated that he might have appeared for once or twice In the case of State Versus Sita Ram, where he was one of the witness. PW.4 Kishori Lal has further stated that on the day of incident when he was present near the shop of one Sohan Lal at Ganj Bazar, then he noticed the accused sitting in the stairs and he could see him. He has further stated that the path where he was with Ganga Ram, the people can be seen coming and going thereon but that place is not so busy as the shop of Sohan Lal is in the end of Ganj Bazar. In presence of Kishori Lal (PW.4), the accused-respondent was asked to give his personal search to the police officials and the document in this behalf was prepared and signed by him. According to PW.4, Ganga Singh is also known to him because he is doing the business of selling locks and scissors etc. in the Ganj Bazar. On that day, PW.4 Kishori Lal and Ganga Singh both were altogether right from 1.30 to 2.00 P.M., present in the Ganj Bazar. PW.4has further stated that the sample parcels and parcel Ex.P1 were sealed on the spot outside the shop of Sohan Lal, however, PW.4 was not aware that Sohan Lal was also called by the police, however, PW.4 appears to be a stock witness of the prosecution. Whereas, PW.5 Het Ram also appears not to have correctly stated as he has stated that he had to go Ganj Bazar on that day with Ganga Singh, such statement made by him is absolutely false because they running business in the Ganj Bazar itself there was no question of their coming to 4 Ganj Bazar on that day. The investigating officer appears to have not associated some respectable person from the locality deliberately and intentionally and has associated only PW.4 Kishori Lal, a stock witness, and Ganga Singh, who was left over from being examined perhaps with an intention he might have been won over by the accused or it could be a repetition. 5. On scrutiny of the prosecution witnesses and materials on record, it appears that the present case is of chance recovery. In view of the facts and circumstances, we find that stock witness i.e. PW.4 Kishori Lal is not inspiring confidence and recovery is itself doubtful. 6. On analysis of the prosecution witnesses and materials on record, the learned Additional Sessions Judge has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings given by learned Additional Sessions Judge. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 7. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge September 29, 2010 (V.K. Sharma) (Purohit) Judge