IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 360 of 2001. Judgment reserved on 24.6.2011. Date of decision: 8.7.2011. State of H.P ...Appellant. Versus Sunil Kumar ...Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting ? No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr. Shrawan Dogra, Advocate with Mr. Umesh Kanwar, Advocate. ____________________________________________ Deepak Gupta, J. 1. This appeal by the State is directed against the Judgment dated 18.4.2001 whereby the learned Sessions Judge, Kullu acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 2. The prosecution story, in brief, is that on 5.5.2000 PW-13 SI Mahinder Kumar, In-charge Police Post, Bhuntar received some information that illicit liquor was being transported from Mandi side. He (SI Mahinder Kumar) alongwith PW-12 constable Neel Chand, PW-10 HC Ram Swroop and PW-9 constable Inder Singh set-up a check post near the Forest Check Post, Bajaura. They stopped and checked a Maruti van bearing registration No. HP-02-6489 coming from Aut side. The same was being driven by PW-1 Prem Singh. According to the prosecution, the accused was sitting on the back seat and between his legs there was a plastic envelope. On checking this envelope, it was found to contain charas which was weighed and found to be 1 kg 575 grams. 3. Three samples of 25 grams each were separated and the samples and the bulk charas was sealed and packed. The charas was taken into possession in the presence of PW-2 Kishori Lal and PW-3 Daulat Ram respectively and after sealing the same the seal was entrusted to PW-1 Prem Singh. After completing all codal formalities, the charas was produced before PW-8 Inspector Roshan Lal who resealed the same and deposited it in the Malkhana with PW-5 MHC Bhagat Ram. One sample was sent through PW-4 constable Inder Singh to CTL Kandaghat. On receipt of report of the chemical examiner, it was found that the sample was of charas and, therefore, 3 challan was filed against the accused. The accused was charged with having committed the aforesaid offence. He pleaded not guilty and claimed trial. After trial the accused has been acquitted. Hence the present appeal. 4. The accused was acquitted only on one ground that the provisions of Section 50 of the NDPS Act were not complied with. In fact, Section 50 has no applicability to the facts of the present case, since the charas was recovered from a bag allegedly carried by the accused and it is not a case of personal search. Therefore, the appeal is being heard on other counts also. 5. PW-13 SI Mahinder Kumar has supported the prosecution version in toto. According to this witness, though they had gone in connection with information relating to illicit liquor, no challan under Excise Act was filed. He further states that when he saw a paper bundle under the legs of the accused, he suspected that it may contain charas and thereafter witnesses S/Sh. Kishori Lal and Daulat Ram summoned. According to him, the entire investigation was carried out on the spot. 6. PW-1 Prem Singh states that the accused had hired his van at Bajaura where certain police officials in civil dress took the van to the PWD Rest House. This witness was declared hostile. In cross-examination by the prosecution, he stuck to his version and denied that the van had been stopped 4 at Bajaura or any plastic envelope was seized there. He, however, admits that three samples of charas were separated and packed in three parcels. According to him, he signed the documents at the police station. In cross-examination by the accused, he states that when the charas was shown to him in the Rest House, the accused was not present and was sitting in the vehicle parked outside. 7. PW-2 Kishori Lal was posted as helper in the Market Committee at Forest Check Post, Bajaura. According to him, the police officials came in a vehicle to the barrier and informed him and Daulat Ram that they had recovered charas in a van. He clearly states that no charas was recovered in his presence. He has also admitted the fact that the samples were separated and sealed and the memos are signed by him. Though he has been cross-examined, nothing material has been extracted from him. PW-3 Daulat Ram turned totally hostile and he even denied the fact that any charas was recovered in his presence. 8. It is important to note that there is no effective cross- examination to the hostile witnesses as to why they turned hostile. The learned public prosecutor was given a chance to cross-examine these witnesses, but he put no suggestions to them which could detract from their testimony or cast a cloud on their veracity. When there is no cross-examination of the independent witnesses relied upon by the prosecution itself, it 5 will be very difficult to rely upon the statement of the investigating officer or the other police officials. According to the prosecution, the search was carried out at the barrier but these witnesses stated that no search was carried out at the barrier and the two witnesses to the recovery stated that they were called to the Rest House. 9. There are certain contradictions in the statements of the police official witnesses. According to PW-13 SI Mahinder Kumar, S/Shri Kishori Lal and Daulat Ram were summoned through Constable Inder Singh. Constable Inder Singh does not say a word in this aspect and PW-10 HC Ram Swaroop states that no police officials were sent to call these witnesses as they were present at the spot. There are inherent contradictions in the prosecution story. The two witnesses PW- 2 and PW-3 turned hostile. Both of them were government servants and there is no effective cross-examination to their statements. In such a situation it will be very difficult to rely upon the prosecution version. 10. We, therefore, find no merit in the appeal which is accordingly rejected. The bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta) Judge 8th July, 2011. (Sanjay Karol) (Krn Guleria) Judge 6