IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 184 of 2003 Reserved on: 29.11.2011 Date of decision: 1.12.2011 State of H.P. ... Appellant Versus Saran Dass … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr. Chaman Negi, Advocate. Per V.K. Ahuja , J.: This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Sessions Judge, Chamba, dated 30.11.2002, vide which he acquitted the respondent of the charge framed against him under Section 20 of the Narcotic Drugs and Psychotropic Substances Act and hereinafter referred to as ‘the NDPS Act’. 2. Briefly stated, the facts of the case are that on 1.10.2001 PW-7 Kulwant Singh Inspector, alongwith other police officials was present at Bakani bridge at about 4.15 A.M. PW-1 Jodh Singh was also standing there waiting for the bus. Meanwhile, a person came from Rakh side, who was holding an 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 envelope Ext. P-3 in his hand and when he saw the police party, he suddenly took a turn and started running. On suspicion, he was chased and he fell down and received minor injuries. He disclosed his name as Saran Dass. The search of his bag was conducted and Charas wrapped in a white envelope was recovered. Constable Rajesh Kumar was sent to bring weights and scale He brought PW-2 Dharam Chand to the spot. The Charas was weighed and was taken into possession as per the procedure. It was found to be 2 Kgs. Two samples were taken and these were taken in possession vide recovery memos and were sealed at the spot. He sent Ruka Ext. PW4/A to MHC for registration of the case and deposited the case property with the MHC on return. On receipt of the report of Chemical Examiner and on completion of the investigation, the challan was filed in the Court of learned Sessions Judge, who tried the respondent as detailed above, leading to his acquittal. 3. We have heard the learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the record of the case, it is very much clear that PW-7 Kulwant Singh was the Investigating Officer of the raiding party, who was present at Bakani bridge at about 4.15 A.M. He stated that PW-1 Jodh Singh was also standing there waiting for the bus and not that he joined Jodh Singh as a witness. He further stated that constable Rajesh Kumar had brought PW-2 Dharam Chand with weights and scale and he did not state that the said Dharam Chand was also associated as an independent witness. It is, therefore, clear from the statement 3 of the Investigating Officer that one witness was standing at the spot and another came with weights and scale. But he did not state that they were associated as independent witnesses at the time of recovery of the Charas or its weighment or its taking in possession by him. It is, therefore, clear that mandatory provisions of Section 100(4) Cr.P.C. were not complied with. These provisions pertain to the search of a place that two independent witnesses must be associated. However, these provisions also apply in the case of personal search. In case, the Investigating Officer offers some explanation that it was early morning or that the witnesses were not available there and there were no shops and houses and, therefore, he could not comply with these mandatory provisions. In case such an explanation is offered by the Investigating Officer and that explanation is found plausible, the Court can hold that the mandatory provisions of Section 100(4) Cr.P.C. were complied with. However, statement of the Investigating Officer suggests that he neither took any steps to associate the independent witnesses, nor gave any explanation for non-compliance thereof. 5. In view of the above discussion, the net conclusion that can be drawn is that the mandatory provisions of Section 100(4) Cr.P.C. were not complied with and benefit of this non- compliance has to go to the accused. 6. In regard to the two persons who were present at that time, Jodh Singh who was present at the bus stand, has been examined as PW-1. He stated that the respondent was not apprehended in his presence and nothing happened in his presence. 4 He was subjected to a detailed cross-examination, but denied that any recoveries were effected in his presence. No reasons were brought on record to show that he has deposed falsely to favour the accused. 7. The other independent witness PW-2 Dhara Chand, who allegedly brought the weights and scale, has stated that he had not brought any weights and scale at the place of recovery. No Charas was weighed by him at Bakani bridge. He was also declared as hostile and was allowed to be cross-examined by the learned P.P. for the State. However, nothing could be brought on record to show that he has any reason to depose falsely in favour of the accused. He has stated that he signed at the instance of H.C. Surender Kumar, who was known to him. Thus, the statements of both the independent witnesses, who turned hostile, do not support the statement of the Investigating Officer, who had failed to comply with the mandatory provisions of Section 100(4) Cr.P.C. also. 8. Apart from the above, the prosecution had examined PW-3 constable Kuldeep Singh, who was allegedly present at the spot. He has stated that the Charas was recovered in his presence. However, he admitted that his signatures are not there on any of the recovery memo. Therefore, his presence at the spot may be doubtful since no recovery memo etc. or other document was signed by him at the spot. He also stated that weights were of 3 Kgs. And 500 gms and that the Charas on weighment was found to be 2 Kgs. only. He denied that the signatures of independent witnesses were obtained by H.C. 5 Surender Kumar at the police Station. PW-6 Sadhu Ram, Inspector, was posted as Additional S.H.O. and he has corroborated the statement of PW-7 Kulwant Singh. He admitted that in those days it was dark in the morning at 4.15 A.M. when the recoveries were allegedly effected. He admitted that electric pole has not been shown in the site plan. He also stated that he had not recorded this fact in the statements of the witnesses that they saw the accused from a distance of 40-50 metres. He also denied his knowledge that both the independent witnesses were friends of H.C. Surender Kumar. 9. The other witnesses are of formal nature. 10. The net conclusion drawn by the learned trial Court holding that the prosecution has failed to prove its case beyond any reasonable doubt, cannot be said to be perverse calling for an interference by this Court. 11. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged forthwith. ( Deepak Gupta ), Judge December 1, 2011 ( V.K. Ahuja ), (BSS) Judge