1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 463/2000 Decided on November 29, 2010 State of H.P. …Appellant. VERSUS Kaul Ram ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Addl. AG with Mr. Rajinder Dogra, Addl. AG For the respondent: Mr. Y.P.S. Dhaulta, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 25.4.2000 passed by learned Addl. Sessions Judge, Mandi, HP in Sessions Trial No. 6 of 1999, thereby acquitting the respondent / accused for the offence under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985. 2. The prosecution case is that Puran Chand, Incharge, CIA staff Mandi, Police Station, Sadar, Mandi, sent a rukka through Head Constable Bhag Chand to SHO, Police Station, Balh for registration of a case under NDPS Act, alleging that complainant along with HC Whether the reporters of the local papers maybe allowed to see the judgment? 2 Bhag Chand at about 3 PM, on 14.11.1998 was present at Siyan Chowk in a routine patrol duty, where Daulat Ram, resident of Dhaban and Muni Lal, resident of Biharta, coming from Kansa chowk met them. Daulat Ram informed that one person carrying blue colour bag on his shoulder was coming from the side of Kansa chowk towards Dhaban. After sometime, one person coming from the side of Kansa chowk towards Dhaban, was stopped and his search was made. During search, one polythene envelope containing opium wrapped in blue colour shawl kept in the bag was recovered. On weighing, 1 Kg of opium was found from which two samples of 10 gram each were taken and separately sealed for the purpose of chemical analysis and remaining opium was packed in a parcel. All the three packets were duly sealed with seal impressioin ‘A’. Bag and the shawl which contain opium were separately sealed with seal impression ‘A’ . Seal after use was handed over to Sh. Muni Lal. On investigation, the accused/respondent was charged for the offence under section 18 of NDPS Act. 4. In order to prove its case, prosecution has examined as many as 11 prosecution witnesses, namely, PW-1 Muni Lal, PW-2 Girdhari Lal, PW-3 Daulat Ram, PW-4 Bhupinder Pal, PW-5 Dewan Chand, PW-6 Khem Chand, PW-7 Noor Mohammad, PW-8 Bhag Chand, PW-9 Puran Chand, PW-10 Vinod Kumar Dhawan and PW-11 Kali Dass, whereas, through his statement under Section 313 Cr.P.C, accused/ respondent denied the prosecution case. 5. Muni Lal, PW-1, an independent witness associated with the raiding party, has stated that he neither knows the accused nor the police had detained the accused in his presence and nothing was 3 recovered from the accused in his presence, as such, PW-1 was declared hostile. PW-2 Girdhari Lal, an another independent witness, running a vegetable shop, has stated that on 14.11.1998, police had taken weight and scale from him. In his cross examination, this witness PW-2 has stated that the police took his scale and weight at about 11 AM and returned the same at about 3 PM on the same day. In view of the testimony of PW-2, there are number of houses on both sides of the highway at Siyan. PW-3 Daulat Ram, constable in the office of DIG Mandi has stated that on 14.11.1998 at about 11 AM when he was present at Kansa Chowk, he received secret information that accused was in possession of opium and, therefore, PW-3 left kansa chowk at about 2.45 PM on 14.11.1998 on his scooter towards Ner chowk, where Muni Lal (PW-1) met him and accompanied PW-3 on his scooter to village Dhaban and when they reached Dhaban chowk, ASI Puran Chand (PW-9) and HC Bhag Chand (PW-8) met them and then he informed them that one person suspected to be in possession of opium was on way from Kansa to Dhaban and, as such, in presence of PW-1, accused was asked to be searched. However, he was not prepared to be searched by the local police party headed by ASI Puran Chand (PW-9) and consented for search before the Gazetted Officer. As such, consent memo Ex PW-3/B was prepared, which was duly signed by him. PW-1 Muni Lal, accused and Addl. Superintendent of Police was called telephonically. PW-9 Puran Chand ASI recovered opium weighing I Kg and PW-1 Muni Lal had put signature on the recovery memo. 6. On analysis of the prosecution witnesses and materials on record, we notice that PW-1, Muni Lal an independent 4 witness of the recovery, however, has not supported the prosecution case and has completely shown his ignorance that any recovery was made in his presence, so much so, he has stated that he was not associated during the investigation by the police. As per the prosecution version, search of the accused was conducted and opium was recovered on the spot after 4 PM on arrival of Addl. Superintendent of Police Vinod Kumar Dhawan (PW-10) and thereafter weight and scales were arranged by Sh. Girdhari Lal (PW- 2). PW-2 was in his testimony, has indicated that weights and scales were taken from him at 11 AM and the same was returned about 3 PM on the same day. Such version of Girdhair Lal, PW-2, therefore, falsifies the prosecution story regardomg recovery and seizure of the opium at 4 PM after arrival of Addl. SP Vinod Kumar Dhawan (PW- 10). If the search was made at about 11 AM, there was no question of making any recovery at 4 PM. PW-3 in his cross examination has admitted that there are about 25 shops from Kansa chowk to Siyan chowk and police station, Balh is at a distance of 1 ½ Km from Kansa chowk and there are number of Panchayats and Pradhans in Gram Panchayat, Dhaban, Kumi and nearby area. As per examination-in- chief, PW-3 has stated that he came to know that accused was in possession of opium at 11 AM and despite the fact that this witness was working in the police department as constable, he failed to report the matter immediately to the SHO, Police Station, Balh, for which he has given an explanation that he had been reading newspaper at Kansa chowk from 11 AM to 2.45 PM. Thereafter, he left Kansa chowk on his scooter towards his house. Such conduct on the part of this witness has rendered the prosecution story doubtful. 5 7. In cross examination, (PW-8) HC Bhag Chand has admitted that he has neither signed any document nor his signatures were obtained on any of the documents. (PW-9) Puran Chand had obtained the signature of PW-8 on documents Ex PW-3/A, Ex PW-3/B, Ex PW-3/C and PW-3/D, which are alleged to have been prepared at the spot. Further, the cross examination of this witness shows that police party left Mandi for Dhaban chowk at 2.30 PM through private bus and the accused was intercepted by the police at Dhaban chowk at about 3.30 PM and Addl. SP Vinod Kumar Dhawan (PW-10) reached Dhaban chowk at about 4 PM. From the testimony of PW-10, it becomes clear that there was no occasion at 11 AM for the police party requiring weight and scales. (PW-9) Puran Chand, in his cross examination, has admitted that he was on excise raid on 14.11.1998, but he has not given any explanation for not associating any independent witness with him. 8. In the present facts and circumstances as revealed from the testimonies of the prosecution witnesses and materials on record, two independent witnesses associating the raiding party, have not at all supported the prosecution case, as such, the recovery itself has become doubtful. As per the prosecution version when recovery of contraband goods, namely, opium was made from the accused/respondent at about 4 PM, then there was no occasion to take weights and scales from PW-2 at 11 AM and returned to him at 3 PM on the same day. As such, recovery of contraband goods becomes also doubtful in respect of time. The spot from where the recovery was made is also doubtful. The link witness is also missing. We also notice that no witness was called from nearby houses and the 6 shops which were located nearby the spot from where the recovery of contraband goods are alleged to have been made. 9. On the basis of materials on record and prosecution witnesses, learned Addl. Sessions Judge has rightly arrived at finding that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view, the prosecution has failed to bring home guilt to the accused. We find no scope for interference in the impugned judgment of the trial court. The criminal appeal, being devoid of merit, is accordingly dismissed. 9. Bail bonds, furnished by the accused/respondent, are hereby discharged. ( R.B.Misra ), J. 29th November, 2010 (Kuldip Singh), J. (sl)