1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.284 of 1997 Decided on June 28, 2010 ________________________________________ State of H.P. …Appellant Versus Balbir Singh …Respondent Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? For the Petitioner: Mr. J.S. Rana, Asstt. Advocate General. For the respondent : Mr. Sandeep Chauhan, Advocate. V.K. Sharma,J (Oral) The State is in appeal against the judgment dated 15.1.1997 of the learned Sessions Judge, Sirmaur District at Nahan, whereby the respondent herein, who was accused before the learned court below and shall hereinafter be referred to as such, was tried for the offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short the ‘NDPS’ Act) was ultimately acquitted. 2. Brief facts of the case may be stated thus. On 16.6.1996 at about 11.30 AM when SI Chatter Singh along with ASI Ramesh Chand, HC Sohan Singh and constable Beer Singh came to the Police Post at Katcha Tank, Nahan, they found the accused sitting on a Chabutra under the Jamun tree in front of the Police Post, Katcha Tank with a bag in his lap. SI Chatter Singh 2 suspected that the accused might have been carrying some narcotic drugs. Therefore, he joined Om Parkash and Gian Chand in the police party and informed the accused accordingly. He had also offered the accused that if he so desired his search could be conducted in the presence of a Magistrate or a Gazetted Officer, but the accused allegedly reposed confidence in SI Chatter Singh. Therefore, SI Chatter Singh took the search of the bag of the accused. A polythene bag containing 2 KGs Poppy husk was recovered from the said bag. After taking a sample of 100 grams, the sample and the remaining poppy husk were sealed in separate packets with seal ‘T’ in the presence of the witnesses and taken into possession. The copy of the recovery memo was supplied to the accused. A rukka was prepared on which a case under Section 15 of the NDPS Act was registered against the accused. Accordingly, the accused was arrested and he was informed about it. Thereafter, SI Chatter Singh sent special report to the Additional Superintendent of Police and deposited the case property at Police Station, Nahan. 3. After receiving report of the Chemical Examiner about the incriminating material as poppy husk, the accused was sent up to face trial. On being charged, he pleaded not guilty and claimed to be tried. 4. On close of the prosecution evidence, the accused was examined under Section 313 of Cr.P.C wherein his defence was that of denial simpliciter, innocence and false implication. 5. On conclusion of the trial, the accused was acquitted of the charge as already noticed. We have heard the learned 3 Assistant Advocate General for the appellant/State and learned counsel for the respondent/accused and have perused the record. 6. The learned trial court has acquitted the accused mainly on the grounds that firstly in the face of sole independent witness examined by the prosecution not supporting its case, the official version about the incident cannot be safely relied upon for the reason that it suffers from inherent contradictions, which in the facts and circumstances of the case, cannot be lightly over looked. Secondly, the report of the Chemical examiner, Kandaghat was also discarded on the ground that in view of the rules framed under the NDPS Act, the report ought to have been either from the Chemical Examiner at Neemuch or Gazipur being the only authorized Chemical Examiners. 7. Insofar as the second ground for acquittal of the accused is concerned, it is by now fairly settled that it not incumbent upon the prosecution to prove its case only by way of reports from the Chemical Examiner, Neemuch or Gazipur and instead all the State Forensic Science Laboratories and such other Chemical Test Laboratories as in the present case, i.e Chemical Test Laboratory, Kandaghat are fully competent to examine the incriminating materials seized under the provisions of NDPS Act. 8. However, even after disagreeing with the learned trial court on the above counts, we are satisfied that the evidence adduced by the prosecution, during the trial, is not sufficient either in content or veracity to return a finding of guilt against the accused on the testimony of the official witnesses, namely, PW-6 HC, Sohan Singh and PW-8 Inspector Chatter Singh. 4 9. Admittedly, two independent witnesses, namely, PW-5 Gian Chand and Om Parkash (not examined) were joined by the police in the raiding party. However, one of them, Om Parkash was given up and the other PW-5 Gian Chand did not support the prosecution story and was as such declared hostile. He was permitted to be cross examined by the learned Public Prosecutor, but without any tangible result. Even during cross examination, nothing material could be extracted out of him so as to either impeach his testimony as a whole or to extract something out of him so as to lend credence to the prosecution version. 10. Thus the evidence of the official witnesses is required to be examined independently. Though both PW-6, Sohan Singh and PW-8, SI Chatter Singh have stated that on the day of occurrence i.e. 16.6.1995 at about 9 AM, they had gone to village Cheeranwali in connection with the investigation of a theft case. However, when confronted with this aspect of the matter, they were not in a position to give the names of the persons whom they had joined in the investigation of that case or time spent by them on the spot at village Cheeranwali. 11. The deposition of PW-6, HC Sohan Singh that the incriminating material was recovered from the accused and was taken into possession vide recovery memo Ext PG, also appears to be doubtful as the document does not bear his signatures. 12. Another aspect of the matter which has been taken note of by the learned trial court is that strangely enough though according to the police file, a similar case relating to one Darshan Singh was also detected at the same time but both the official witnesses, PW-6, HC Sohan Singh and PW-8, SI Chatter Singh 5 have denied this aspect of the matter. According to them, no other case was detected against any other person on that day. However, PW-6,Sohan Singh, after looking into the recovery memo of the case relating to said Darshan Singh, has admitted this fact. It being so both the official witnesses are not unanimous on this aspect of the matter. 13. It may also be observed that the accused by placing on record the copies of daily diary reports Exts DA, DB & DC has belied the testimony of the official witnesses, PW-6, HC Sohan Singh and PW-8, SI Chatter Singh with regard to the time of their departure from the police station and apprehension of the accused at 11.30 AM. In this view of the matter, the inference drawn by the learned trial court that the defence version gets probabalized that the accused along with the said Darshan Singh was detained by the police at Police Station, Nahan at 4.00 PM after they had alighted from the bus and a false case was made against them. 14. For the reasons stated above, we did not find any reason to interfere with the impugned judgment of the acquittal dated 15.1.1997. The appeal is accordingly dismissed. ( R.B. Misra), Judge. June 28, 2010 (V.K. Sharma) (sl) Judge