IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 321 of 1996 Decided on July 1, 2010 _______________________________________________________ State of H.P. …Appellant Versus Naval Kishore . …Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? Yes/No For the Appellant: Mr. Rajinder Dogra, Additional Advocate General, with Mr. Anil Jaswal, Deputy Advocate General. For the respondent : Mr. Arun Kumar, Advocate. Justice R.B. Misra,J. 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, in reference to the judgment dated 26.4.1995 passed by the Learned Sessions Judge, Sirmour, District at Nahan, H.P. in Sessions trial No. 6-N/7 of 1995, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short called as ND&PS ‘Act’), acquitting the alleged accused/respondent. 2. In order to adjudicate the present appeal, it is necessary to give the factual background of the case, that on 5.11.1994, Tersem Lal, SHO formed a police party comprising of Head Constable Tapinder Singh and constables Irshad Ahmad, Man Singh and Jangbir. They reached a place, known as Nai Neti, and observed that a bus was coming from Pul-Bahal side intended to go for Solan. The bus was stopped and the police party boarded the bus from the front door and started checking. One person alighted from the rear door of 2 the bus and started running towards the school, carrying a black coloured bag in his hand. That person was chased by SHO alongwith other police officials, and ultimately he was apprehended. On personal search of the accused, two parcels of charas balls, wrapped in polythene pouches Ex.P2, his shirt Ex.P3 and towel Ex.P4, were recovered from the bag. SHO Tarsem Lal asked the accused as to whether he wanted to be searched by him or by a Gazetted Officer or a Magistrate. The accused expressed his willingness Ex.PE to be searched by Tarsem Lal himself. 3. During search of the accused, 2.15 Kgs of charas, was recovered . Out of recovered 2.15 Kgs charas, 15 grams charas was separately extracted as sample for test by the chemical examiner. Thereafter, the remaining contraband and sample were wrapped and sealed with impression ‘I’. The seal, thereafter, was handed over to Dhani Ram. The search, seizure and arrest of the accused were made in presence of independent witnesses, namely, Tara Chand PW.5 and Anek Ram PW.8, besides the police officials. The accused was charged under Section 20 of the ND & PS ‘Act’ 4. In order to prove its case, the prosecution examined as many as nine prosecution witnesses, whereas, the accused / respondent, in his statement under Section 313 of Cr.P.C., has denied the prosecution case. 5. We have gone through the contents of the prosecution case and noticed that PW.5 Tara Chand and PW.8 Anek Ram said to be independent witnesses, were present throughout the seizure proceedings of the contraband item Ex.P2 and from the personal search of accused at Nai Neti on 5.11.1994. However, as per prosecution witnesses, PW.5 Tara Chand and PW.8 Anek Ram, no 3 search and seizure took place in presence of the police officials. PW.5 being the conductor of the bus bearing registration No. HP-15- 0205, in which accused was travelling, has not testified that the accused got out of the bus from the rear door and took to his heels and after chasing apprehended him. PW.5 has also not certified that bag Ex.P1, containing contraband item Ex.P2, was being carried by the accused. As PW.5 had only stated that the police entered into the bus and recovered some bag. PW.5 was declared hostile when cross-examined. 6. We notice, in view of the testimony of PW.5 Tara Chand, that neither bag Ex.P1 and contraband item Ex.P2 were said to be in possession of the accused nor the same could have been recovered by the police from the possession of the accused. 7. In view of the testimony of PW.8 Anek Ram, we notice that he has rather supported the version of PW.5 Tara Chand. According to PW.8 Anek Ram, the police brought a bag from inside the bus, and disclosed him and PW.5 Tara Chand, that it has been recovered from the accused. However, PW.8 had also been declared hostile. 8. PW.3 Constable, Jangbir Singh, was associated as member of the searching party and in view of the testimonies of PW.9 SHO Tarsem Lal and PW.2 Head Constable Tapinder Singh, PW.3 Jangbir Singh was present and associated throughout the search, seizure and arrest of the accused. But on examination, PW.3 did not disclose even an iota, whereby the accused could be implicated for commission of the said offence in question. 9. In our considered view, in the present case, there was no personal search as the contraband item was said to have been 4 allegedly recovered form the accused and before making the search, Tarsem Lal PW.9 asked the accused whether he wanted to be searched by him or by a Gazetted Officer or by a Magistrate. However, in the present case, question of personal search is not involved. One contradiction is also noticed that in view of Ex.PC, when contraband item was searched, it was found only 2.00 kgs. Whereas, the prosecution case is that the accused was carrying 2.15 kgs of contraband item. 10. PW.5; Tara Chand and PW.8 Anek Ram, two independent witnesses were said to be vital and conclusive for proving the guilt to the accused but they were declared hostile or insufficient to carry force to prove the case of the prosecution. 11. On scrutiny of the statements of the prosecution witnesses and material on record, the learned Sessions Judge has rightly arrived at the conclusion that the prosecution had failed to prove its case beyond reasonable doubts and to bring home the guilt to the accused as to prove the offence under Section 20 of the ND&PS Act. In our considered view, there is no scope for interference in the findings, given by learned Sessions Judge. 12. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. The bail bonds furnished by the respondent/accused are hereby discharged. (Justice R.B. Misra), Judge. July 1, 2010 (Justice V.K. Sharma) (Purohit) Judge