IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No: 164 of 2002 Date of decision: 20.6.2011 State of H.P. .....Appellant. Versus Kamal Kumar Kaushal .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra, J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? For the appellant: Mr. R.K. Sharma, Sr. Addl. Advocate General. For the respondent: Mr. Ramakant Sharma, Advocate. R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted against the judgment dated 22.8.2001 passed by the learned Sessions Judge, Solan acquitting the respondent/accused for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short referred to as “Act” in reference to FIR No. 44/2001, Police Station Solan. 2. The prosecution case is that on 7.3.2000, Shri Surender Pal, Sub Inspector, Nalagarh received an information Whether the reports of the local papers may be allowed to see the judgment? 2 that the accused was involved in the trade of contraband goods. Accordingly, a trap party was constituted of Sohan Lal, H.C., Manoj Kumar, constable and Prem Kumar, constable, with two independent witnesses namely Gulab Rai and Jagdish Chand (not examined). The said Surender Pal, proceeded to apprehend the accused in the presence of independent witnesses search of accused was made, after obtaining the consent of the accused Kamal Kumar Kaushal, as whether he was agreed to be searched by him or in presence of Magistrate or Gazetted Officer. On his agreeing for search by the police and on his search 40 grams of charas was recovered from a polythene pouch being carried by accused in his right hand. Two samples were taken which were sealed and the remaining charas was also sealed separately. The samples were sent for chemical examination. After the completion of the investigation, the accused was charged for the aforesaid offence. 3. The prosecution, in order to prove its case, has examined as many as 8 prosecution witnesses, whereas, the accused through his statement under Section 313 Cr.P.C. has denied the prosecution case. 4. PW1 Gulab Rai, an independent witness has stated that on personal search, a polythene pouch was recovered from 3 the right hand of the accused. PW1 has stated in cross- examination that no other document was served to the accused before obtaining his consent. PW2 Kamal Nain, MHC has stated that on 7.3.2001, SI Surender Pal deposited three parcels of the case property in this case with him bearing seal impression “K”. On 8.3.2001 one of the sample was sent through C. Prem Lal vide R.C. No. 32/2000, which he deposited in CTL, Kandaghat. PW3 Prem Singh, H.C. has stated that on 8.3.2001 MHC Kamal Nain handed over one parcel to him vide R.C. No.32/201, which was deposited by him in CTL, Kandaghat. PW4 Naresh Kumar provided scale and weights to one Constable, who name is not known to him. PW5 Devinder Kumar, H.C. received special report through courier service brought by one constable. 6. PW6, SI Surender Pal on receiving information against the accused, formed raiding party and associated two independent witnesses, however, he has very categorically stated that he did not send the reasons of belief to his superior officer in this case due to shortage of time. On obtaining the consent of the accused, his personal search was conducted and contraband good/item was recovered. Further it has been stated by PW6 that rukka Ex.PG was drawn and sent to the police station for registration of the case, on the basis of that rukka FIR Ex.PH was recorded. Rukka Ex.PG was sent 4 through constable Prem Chand and special report Ex.PF was sent to S.P. Solan through courier. PW6 in cross-examination stated that the incriminating information against the accused was received by him at the bus stand itself. Such information however was not reduced into writing by him because the accused appeared immediately before them. There were about 50 to 100 people at that time at bus stand. The accused was not having any convenience like car, scooter and any other two wheeler when the accused attempted to run on noticing the presence of the police, he was apprehended by PW6, who has categorically stated that the reasons of belief were not recorded by him even after apprehending the accused on the spot. PW6 has also stated that the case property was not dealt with at the police station after its receipt there in any manner whatsoever. 7. PW7 Muni Lal, ASI on the receipt of the rukka Ex.PG registered FIR Ex.PH. PW8 Rakesh Aggarwal, S.P. received special report on 8.3.2001. 8. On the basis of testimony of prosecution witness PW6, Surender Pal, it appears that as required under Section 42 of the ‘Act’ reasons of belief were not reduced into writing and no information as such was given to his superior. As such, the mandatory compliance of Section 42 of the ‘Act’ was not made. As required under Section 55 of the ‘Act’ after receiving 5 the case property by the MHC from PW6 Surender Pal it was to be resealed and thereafter the sample was to be sent for chemical examination however it was very categorically stated by PW6 (Surender Pal) that the case property was not dealt with in the police station after its receipt there in any manner. As such the requirement of Section 55 of the ‘Act’ was also not fulfilled. Similarly, the perusal of the Ex.PA shows that it was not signed by the accused as such it can safely be concluded that the accused was not apprised of his legal right about the personal search by PW6 (Surender Pal). The mandatory requirement of Section 42 of the ‘Act’ has also not been complied with. Nothing has revealed that the NCRB form has been filled up on the spot. As such link evidence is missing in the present case as it is difficult to correlate that the chemical examiner has made the report qua the samples of the contraband good recovered from the accused because at one stretch in same ink FIR number was mentioned in the NCRB form. It is not clear whether the NCRB form was prepared on the spot or subsequently. For persisting inconsistencies, contradictions and for lack of fulfillment of mandatory requirements of Sections 42 and 50 of the ‘Act’, the prosecution case has rightly been found not to be proved beyond reasonable doubt. 6 9. In our considered view, the prosecution has failed to prove its case beyond reasonable doubt. We find no scope for interference in the impugned judgment and the Criminal Appeal, being devoid of any merit, is accordingly dismissed. 10. Bail bonds, furnished by the respondents, are hereby discharged. (R.B. Misra), J. June 20, 2011 (V.K. Sharma), J. (jai)