IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 248 of 2002. Date of decision: 13.07.2011. State of H.P. ….. Appellant. Vs. Prithvi Raj & Anr. …. Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. R. K. Sharma, Sr. Addl. A. G. with Mr. Rajinder Dogra, Addl. A.G. For respondent No.1 : Mr. Vinay Thakur, Advocate For respondent No.2 : Mr. N. S. Chandel, Advocate Sanjay Karol J. (Oral. For an offence, which is alleged to have been committed on 7.6.2001, accused were put to trial. In terms of judgment dated 11.1.2002 passed by learned Sessions Judge, Solan, in Sessions Trial No. 8-S/7 of 2001 titled as State of H.P. vs. Prithvi Raj & Anr., accused stands acquitted of the charged offence. 2. It is stated at the Bar that accused No.1 Prithvi Raj has expired. Consequently appeal qua him stands abated. 3. With regard to accused No.2, Ravinder Chauhan, it is the case of the prosecution that ASP Sunder Lal (PW-9) received information on 7.6.2001 that both Whether the reporters of the local papers may be allowed to see the Judgment? 2 Prithvi Raj and Ravinder Chauhan were indulging in trafficking of charas. Accordingly, he deputed C. Balwant Singh (PW-3) and HC Om Parkash to visit village Sanwara where Prithvi Raj was residing and keep a vigil over them. This information was recorded by PW-9 and sent to the superior officer vide memo Ext.PL. Same day at about 1.30 P.M., he received an information from PW-3 that accused Ravinder Chauhan had already reached the residence of accused Prithvi Raj at village Sanwara, taken on rent from Gopal Singh (PW-10). Thereafter PW-9 summoned Sub Inspector Nutan Parsad and proceeded towards Police Station, Dharampur, from where he asked C. Dhuk Bhanjan and Manoj Kumar to come alongwith them to the spot. Upon reaching village Sanwara, PW-9 associated two independent witnesses S/Sh. Ram Lal (PW-1) and Bal Kishan (PW-2). The building was surrounded from all sides. Police party along with independent witnesses entered the room occupied by the accused persons and expressed their apprehension and desire of searching the same. Memos Exts.PA & PB with regard to search were prepared and served upon the accused persons. Police party gave their personal search before conducting the search of the premises and nothing incriminating was found from their person. Thereafter room was searched and one carton lying behind near the door was recovered. Same was opened and contraband 3 substance, which looked like charas in the shape of rolls and balls was recovered. Sh. Gopal Singh was summoned to weigh the same and upon weighment contraband substance was found to be of 650 grams. Two samples of 25 grams each were taken and sealed with seal impression ‘U’. The remaining stuff was also packed and sealed with seal impression ‘U’. Memo of recovery (Ext.PE) witnessed by PW-1 & PW-2 was drawn. Seal was thereafter handed over to PW-2. Rukka (Ext.PN) was sent by PW-9 to Police Station, Dharampur, where F.I.R. No. 57/2001 (Ext.PO) under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’) was registered. Codal formalities were completed at the spot. PW-9 handed over the case property, documents and custody of the accused who were arrested on the spot to H.C. Gurmail Singh. Sealed sample was sent to C.T.L., Laboratory for chemical analysis and report (Ext.PQ) was obtained. With the completion of investigation challan was presented in the Court for trial. 4. Accused were charged for having committed an offence punishable under Section 20 of the NDPS Act, to which they did not plead guilty and claimed trial. 5. In order to prove its case prosecution examined 11 witnesses and statements of the accused under 4 Section 313 Cr.PC were also recorded, in which they took the defence of false implication and innocence. 6. Appreciating the material on record, Court below acquitted the accused of the charged offence on the ground that independent witnesses did not support the prosecution case. 7. Having heard learned counsel for the parties, we see no reason to interfere with the impugned judgment. 8. In the instant case independent prosecution witnesses, namely, Ram Lal (PW-1), Bal Kishan (PW-2) and Gopal Singh (PW-10) have turned hostile and not supported the prosecution case at all. Careful scrutiny of their testimonies would only show that they have not deposed falsely in Court. Inspite of extensive cross-examination by the Public Prosecutor, nothing fruitful could be elicited by the prosecution. These witnesses have categorically denied that any recovery of charas took place in their presence from the conscious possession of the accused persons. Gopal Singh has also denied that he was called by the police to weigh the charas, which was found to be of 650 grams. 9. Simply because independent witnesses have not supported the prosecution, that fact by itself would not render the prosecution case to be fatal. Consequently, careful scrutiny of the testimonies of the relevant police officials i.e. PW-3 and PW-9 needs 5 to be done. Having gone through the same, we also find their testimonies to be contradictory in nature and not inspiring confidence. 10. According to PW-9, upon receiving information that both the accused were indulging in trafficking of charas he had asked PW-3 to keep surveillance on them. At about 1.30 P.M., PW-3 informed him that accused Ravinder Chauhan had reached the residence of accused Prithvi Raj at village Sanwara. Now PW-3 has a different version in this regard, according to whom, he was informed by PW-9 that accused Ravinder Chauhan was likely to hand over some contraband substance to accused Prithvi Raj, which is not the case of PW-9. That apart, according to PW-3, he saw accused Ravinder Chauhan entering the room occupied by accused Prithvi Raj. Now this witness does not state that accused Prithvi Raj had actually carried something in his hands or on his body and actually handed over the same to accused Prithvi Raj. If this was so, then obviously it cannot be said that accused Ravinder Chauhan was actually indulging in trafficking of charas. Simply because he was present in the room which admittedly did not belong to him would not show his complicity to the alleged crime. Further there is nothing to link the box or the contraband substance to accused Ravinder Chauhan. 6 11. We also find that PW-3 has deposed that the information with regard to accused Ravinder Chauhan having come to the residence of accused Prithvi Raj was given at about 1.50 P.M., which fact is denied by PW-9, according to whom, the information was given at about 1.30 P.M.. Contradiction, though appears to be minor but acquires larger dimension and significance for the reason that statements of these police officials cannot be said to be trustworthy. 12. Thus, insofar as complicity of accused Ravinder Chauhan is concerned, prosecution has failed to prove that any charas was recovered from his conscious possession. Admittedly, the room was taken on rent by accused Prithvi Raj from Gopal Singh and accused Ravinder Chauhan had got nothing to do with the same. Simply because accused Ravinder Chauhan happened to be there at the relevant time when the police allegedly raided the premises, that fact by itself cannot be taken to exhibit complicity of accused Prithvi Raj to the alleged crime. Thus, we do not find that prosecution has been able to prove its case beyond reasonable doubt, by leading clear, cogent, convincing and reliable material. 13. Accused has had the advantage of having been acquitted by the Court below. Keeping in view the principles laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, 7 Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra) Judge (Sanjay Karol) Judge July 13, 2011 (rana)