IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 142 of 1997. Decided on 04.06.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Galelu Ram. …Respondent. Coram: The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the appellant : Mr. Rajinder Dogra, Additional Advocate General. For the respondent : Mr. Imran Khan, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge(Oral): State has preferred this appeal against the judgment dated 29.1.1996, rendered in Sessions Trial No. 21/95, whereby the respondent, who was charged with and tried for offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”), has been acquitted. 2. The case of the prosecution, in a nut-shell, is that PW-9 ASI Jindu Ram was on patrol duty alongwith constables Inder Singh, Mohar Dass and Nand Lal at Manikaran Bus Stand on 26.11.1993 at about 5:45 p.m. A person came from Manikaran side towards Bus Stand. He tried to flee. He was apprehended by PW-9. PW-9 informed the accused that the 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. Police had suspicion of his carrying some contraband and thus he was to be searched. He was asked by PW-9 whether he wanted to be searched by a Magistrate or a gazetted officer or by the Police. The accused gave his consent to be searched by the Police and consequently consent memo Ex.PW1/A was prepared. This memo was signed by Thailu Ram and Jaggar Nath. Accordingly, search of the accused was made. The contraband was recovered from his Pithu (bag). According to the prosecution, the accused was carrying 100 grams Charas and 20 grams Opium. Out of the recovered Charas and Opium, five grams each were separated from the bulk and refilled into different parcels for the purpose of sample. These parcels were sealed with seal “H”. Similarly, the remaining bulk of the contraband was also put in the same bag and sealed with seal “H”. The recovery memo Ex.PW1/B was also prepared. The accused was apprised of the grounds of arrest vide memo Ex.PW1/C. This memo was also signed by PW-1 and Shri Jaggar Nath. The impression of the seal was also taken on the piece of cloth. The seal after use was handed over to PW-1. A ruka Ex.PW3/A was sent to the Police Station and the special report and information report Ex.PW6/A and Ex.PW6/B were also sent through Constable Mohar Dass to S.P. Kullu on 26.11.1993. PW-9 produced the parcels containing the remaining contraband and two sample parcels sealed with seal “H” to Shri Paras Ram, SHO, Police Station, Kullu. Shri Paras Ram (PW-7) after re-sealing the parcels with seal “A” handed over the same to M.H.C. Dugloo Ram (PW-4). After the receipt of the chemical report Ex.PW9/B, the challan was put up against the accused. The prosecution examined as many as 9 witnesses. The learned trial court acquitted the respondent. Hence, this appeal by the State. 3. Mr. Rajinder Dogra, learned Additional Advocate General has strenuously argued that the prosecution has proved its case against the respondent. 4. Mr. Imran Khan, learned counsel for respondent has supported the judgment of the learned trial Court. 5. We have heard the learned counsel for the parties and gone through the record carefully. 6. PW-1 Shri Thailu Ram was inimical towards the accused. He has admitted in his cross-examination that the accused had appeared against him in a civil litigation. He has also admitted that he lost the case before both the Courts below. He has further admitted in cross-examination that 5-10 persons were on the spot. 7. PW-2 Shri Inder Singh has also admitted in his cross-examination that at the Bus Stand there was no rush except 2-4 persons. The prosecution has not examined PW Jaggar Nath and he was given up. PW-3 Constable Mohar Dass was handed over the rukka by ASI Jindu Ram on 27.11.1993. He handed over the rukka at the Police Station, Kullu. PW-4 is Shri Dugloo Ram to whom SHO Paras Ram has handed over the three parcels sealed with seal “A”. He stated that he handed over two sample parcels to Constable Aktar Ali (PW-5) on 22.12.1993 vide R.C. No. 235/21. PW-5 Akhtar Ali deposed that he handed over the parcels at Chemical Laboratory, Kandaghat on 24.12.1993 and took the receipts. PW-7 is Inspector Paras Ram. He deposed that ASI Jindu Ram has sent a rukka through Constable Mohar Dass for the purpose of registration of the case against the accused. On the basis of rukka Ex.PW3/A, the F.I.R. Ex.PW7/A was recorded by the Police. ASI Jindu Ram visited the Police Station Kullu and produced the parcels of the case property sealed with seal “H” alongwith N.C.B.-I form. The parcels were re-sealed by him with seal “A” and then handed over to MHC Dugloo Ram (PW-4). PW-9 ASI Jindu Ram has deposed the manner in which the accused was apprehended, consent memo and recovery memos were prepared. According to him, the grounds of arrest were made available to the accused vide Ex.PW1/C. He deposed that he deposited the parcels at Police Station, Kullu with Shri Paras Ram and thereafter, the same were handed over by him to M.H.C. Dugloo Ram for safe custody. 8. PW-1 Thailu Ram, as noticed above, was interested witness since the accused had appeared against him as a witness in civil litigation. The prosecution has not examined Jaggar Nath. According to the statement of PW-1, 5-10 persons were on the spot, whereas according to PW-2, 2-4 persons were present on the spot. In view of this, the prosecution could have examined independent witnesses instead of citing a witness, i.e., PW-1, who was an interested witness. According to PW-9, the parcels were handed over to Paras Ram (PW-7) on 27.11.1993 and thereafter, the same were handed over by Shri Paras Ram (PW-7) to PW-4 Dugloo Ram. However, Dugloo Ram (PW-4) has sent the samples for analysis in the Laboratory at Kandaghat on 22.12.1993 vide R.C. No. 235/21. The samples have remained for about three weeks in the Malkhana. Thereafter, Akhtar Ali (PW-5) has deposited the same at the Laboratory on 24.12.1993. The possibility of the samples being tampered with in these circumstances cannot be ruled out. A bare perusal of Ex. PW9/B reveals that there is only one seal impression, i.e., “H”. It has come in the statement of PW-7 and PW-9 that Paras Ram has re-sealed the samples with seal “A”, however, there is no reference to seal “A” in Ex. PW9/B. Ex.PW1/A, i.e., consent memo is also not in accordance with law. It was incumbent upon PW-9 to apprise the accused that he has right to be searched either by a Magistrate or a gazetted officer. However, in the present case, PW-9 has only asked as to whether the accused wanted to be searched by him or by a Magistrate or gazetted officer. 9. In view of the above discussion, we find no merit in this appeal, which is accordingly dismissed. Bail bonds are ordered to be discharged. (R.B. Misra), Judge (Rajiv Sharma) Judge June 04, 2010. (bhupender)