1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 271/1997 Decided on: August 18, 2010 State of HP …Appellant. VERSUS Tek Ram & others ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr. Rajinder Dogra, Addl. AG For the respondents: Mr. Ajay Chandel, 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 Code of Criminal procedure in reference to the judgment dated 7.10.1996 passed by learned Addl. Sessions Judge, Kullu, District Kullu, HP in Sessions Trial No. 8/1996 thereby acquitting the respondents / accused for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. In order to adjudicate the present criminal appeal, it is necessary to give the factual background of the case. On 30.10.1995, Prem Singh, Incharge, CIA staff Kulu had arranged a Naka along with constables Tula Ram, Ram Singh, Rajinder Kumar and Chet Ram at village Sharni on Manikarn Bhunter Road, in their Whether the reporters of the local papers maybe allowed to see the judgment? 2 official vehicles bearing registration No. HP-34-0011. At about 9.0 pm all the accused persons were noticed coming on foot towards Bhunter side who were made to stop by SI Prem Singh and on inquiry they revealed their names and addresses. Accused Tek Ram was stated to be carrying rucksack (Pithu) on his back and the same was smelling of charas. On suspicion, SI Prem Singh had asked the accused Tak Ram regarding his search. He was conveyed that whether he wants to be searched by the said SI or to some gazetted officer or Magistrate. Accused Tak Ram agreed to be searched by the said SI. On search, 3.5 kilograms charas was said to be recovered from the bag carried by Tek Ram. Out of the recovered charas 50 grams was separated for the purpose of sample and divided into two parts of 25 grams each when was then sealed in two different parcels weighing 25 grams each with seal X and the remaining charas was kept intact and the samples were sent for chemical examination. After investigation, accused was charged for the aforesaid offence. 3. In order to prove its case, prosecution has examined as many as 10 witnesses, whereas the respondents/accused to their statements under section 313 of Cr.P.C denied the prosecution case. 4. On scrutiny of the prosecution witnesses and material on record we notice that neither the police officials made endeavour to associate the independent witnesses nor the independent witnesses were associated while making recovery of charges from the accused despite the fact that PW-1 Constable Ram Singh had admitted that the police was having prior information of the 3 transportation of charas by the accused persons and the recovery was made at a place where it cannot be said that it was a secluded place. Despite endeaovur made, nobody could have been associated and after having prior information and after the recovery having been made on 30.10.1995, no information to the superior officers was given within 48 hours. As such, compliance of section 57 of the Act was not made. Though this provision is directory, still non supply of information the superior officers, in the facts and circumstances, proves the prosecution case doubtful. We also notice that the special report Ext PW-9/A was stated to have been prepared on 31.10.1995. 5. Sh. Nidhi Singh, PW-10, Reader to Dy. SP, Kullu has stated that he was working as Reader to Dy.SP in October, 1995 and on 31.10.1995 special report as well as information report were given to him by the D.SP at 10.0 clock. However, handing over of report within 48 hours has not been proved. The prosecution story qua compliance of Section 55 of the Act is also not satisfactorily proved on record as there are different version qua the production of the case property before the SHO, PS Kullu and resealing thereof. 6. According to PW-3, the case property was handed over to him at 3/3.30 AM in the night intervening 30/31.10.1995,, whereas according to PW-1, Ram Singh, the police party had reached at Kullu somewhere after 12.0 clock in the night. PW-2 Sh. Tula Ram constable has very specifically indicated that after handing over the ruka Ex PW-2/A in PS Kullu and registration of the case, he had taken the file to IO and reached at PP, Bhunter at about 4.0 am on 31.10.1995 when the police party was already there. The police 4 party is stated to have come to Kullu from Bhuter at 6.00 AM. Sh.Roshan Lal in his statement has stated that Prem Singh IO had come to the police station on 31.10.1995 at 3.00 am. The IO has however, given time of his arrival in the police station as 4/4.30 am and so far as the case property is concerned, the same is stated to have been deposited with HC PS, Kullu at 5/5.30 am. These contradictions are vital one and to go to the root of the case. We also notice that there is no evidence regarding recovery of charas from the possession of accused. Rather, it is stated by PWs 1 and 2 and IO PW-10 that nothing was recovered from the accused in search. No recovery of charas was also established on record from the accused Nomi Ram and Kehar Singh. So far recovery of charas from the accused Tek Ram is concerned, the prosecution witnesses do not inspire confidence for non association of independent witnesses and thus the evidence which is that of the official witnesses is also full of contradictions, is not sufficient to hold that the recovery of charas has been made form the conscious and exclusive possession of the accused Tek Ram. 7. As per the prosecution story, raid was made by ASI Prem Singh, who arranged Naka at village Sharni where the accused persons had come all of a sudden and it smelt of charas from the bag of Tek Ram accused and they were searched. However, if the statement of PW-1 Ram Singh, in his cross examination is seen, the same reveals that there was prior information with the police party of the transportation of the contraband. However, naka was stated to have been arranged to detect the crimes. If there was any prior information with the police, 5 the same would have been reduced in writing in order to meet the compliance of Section 42 of the Act, but we find that there is complete departure in this regard. 8. On scrutiny of the prosecution witnesses and the material on record, we find that there are different version regarding the manner in which the accused persons were searched. According to PW-1 first accused Nomi Ram was searched and thereafter Kehar Singh and in the last it was Tek Ram whose search was carried out, whereas according to PW-1 first Kehar Singh was searched and after him accused Nomi Ram and then in the last accused Tek Ram at the first instance and thereafter he is stated to have searched accused Kehar Singh and Nomi Ram. Since no independent witnesses were present, however, search of recovery was made in presence of the official witnesses, who themselves have given contradictory versions. According to PW-8 constable Rajinder after handing over ruka to DSP Kullu he had gone to the spot in the same taxi which the police party was having with it. However as per the version of PW-1 constable Ram Singh, PW-8 did not at all return to the spot and happened to meet at Police Post Bhunter and so far constable Tula Ram is concerned, he has stated that constable Rajinder kumar had not met him after he left the spot along with ruka and till he returned to Kullu alongwith I.O constable Ram Singh and Chet Ram . As per the prosecution case, police party was having official vehicle with them. However, as per the version of constable Rajinder Kumar, PW-8, there was no other vehicle save and except the taxi wherein he has travelled to Kullu and then back to the spot after handing over the ruka to the Dy. S.P. 6 This also falsifies the story of the police party qua its having official vehicle. Had it been so, the prosecution could have examined the driver of such official vehicle as well as placed on record the abstract of log book etc. There are major contradictions qua the sending of special report by the I.O to his superior. We also notice that there are different versions on the record regarding the time of production of the case property before the SHO and its delivery to the MHC, PS Kullu for safe custody in the Malkhana. 9. On the analysis of the prosecution witnesses and material on record and keeping in view the contradictions and inconsistencies, learned Addl. Sessions Judge has rightly arrived at finding that the prosecution has failed to prove its case beyond reasonable doubt and also failed to bring home the guilt. We find no scope for interference in the impugned judgment of the learned Addl. Sessions Judge. Therefore, the criminal appeal, being devoid of merit, is accordingly dismissed. 10. Bail bonds, furnished by the respondents/accused, are hereby discharged. ( R.B.Misra ), J. 18th August, 2010 ( V.K.Sharma ), J. (sl) 7