IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 268 of 2002. Date of Decision: August 8,2011. _______________________________________________ State of H.P. ….Appellant. Versus. Kuldeep Singh. ….Respondent. Coram: Hon’ble Mr. Justice R.B.Misra, Judge. Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?. For the appellant: :Mr. R.K.Sharma, Addl. Advocate General with Mr. Rajinder Dogra, Addl. Advocate General. For Respondent.: :Mr. N.K.Thakur, Advocate. R.B.Misra, Judge(Oral). The present Criminal Appeal has come up for consideration after grant of leave to appeal under Section 378(3) of the Code of Criminal Procedure against the judgment dated 28.12.2001 passed by Sessions Judge, Una, District Una, in Sessions Case No.21 of 2001 acquitting the respondent-accused for the offence under Section 20 of The Narcotic Drugs & Psychotropic Substance Act, 1985 (in short called ‘NDPS Act’ hereinafter). Whether reporters of the Local papers are allowed to see the judgment. 2 2. The prosecution case in brief is that while Constable Ranjit Singh (PW1) was on patrolling duty near Shiv Mandir, 84 Porian, Una town, he received information and accordingly he approached to ASI Akshay Kumar (PW9), who was present near the old Tehsil Chowk, Una, recorded the statement Ext.PA and sent the same through Constable Vipan Kumar (PW2) to Police Station, Una where F.I.R. Ext.PB was registered. ASI Akshay Kumar (PW9) prepared information report Ext.PF and sent it through HHC Sher Bahadur (PW3) to Superintendent of Police, Una and thereafter ASI Akshay Kumar (PW9), constituted a raiding party comprising of Ram Kishan (PW4) and Mangat Ram and intercepted the accused near 84 Porian and after introducing himself to the accused, made a personal search, 1kg. 300 grams of charas was recovered from the plythene packet being carried in a bag on his right shoulder. Two samples of 50 grams each were separated from the same and the samples were sealed with seal ‘O’ and remaining bulk was sealed in a parcel Ext.P2. The case property was deposited in the Malkhana thereafter, it was sent for chemical examination to C.T.L.Kandaghat. After investigation and on receipt of chemical report and after fulfilling the procedure formalities, the accused was charged for the aforesaid offences. 3. In order to prove its case, the prosecution has examined as many as nine witnesses, whereas, the accused through their statements under Section 313 Cr.P.C. denied the prosecution case. 3 4. Constable Ranjit Singh (PW1) in support of the prosecution case has stated that on receipt of information, he went to ASI Akshay Kumar (PW9), who was present at Tehsil Chowk, Una and made statement Ext.PA. As per statement Ext.PA sent through Constable Vipan Kumar (PW2) F.I.R. Ext. PB was registered. Ranjit Singh (PW1) has stated in his cross-examination that ASI Akshay Kumar (PW9) met him within five minutes of the receipt of the secret information and Ext. PA was written by PW9 ASI Akshay Kumar by sitting on a bench outside a shop. The shop was towards 84 Porian from Police Station, Una. Constable Vipan Kumar (PW2) has stated that on 8.7.2001 he handed over statement Ext.PA sent by PW9 to M.H.C. Police Station, Una, where upon F.I.R. was registered. HHC Sher Bahadur (PW3) stated that on 8.7.2001, he was handed over information report Ext. PF by ASI Akshay Kumar (PW9). He produced it before the Superintendent of Police, Una on the same day at his residence. Ext. PF was returned to him by Superintendent of Police, Una after making endorsement of ‘Seen’ on the same. HHC Sher Bahadur (PW3) further stated in his cross- examination that the residence of Superintendent of Police, Una was about 1 ½ kilometer from old Tehsil Chowk, Una. PW3 returned Ext. PF to ASI Akshay Kumar (PW9) on the start of the 84 Porian from Bazar side and at that time PW9 was sitting there on a bench. There was no shop at that place. As stated by PW1 that PW9 was sitting on a bench in front of the shop whereas, PW3 has stated that PW9 was 4 sitting on a bench and there was no shop at that place. As such, there are contradictions in the testimony of PW1 and PW3 about the place of search. 5. Ram Kishan (PW4) said to be an independent witness, was called by the police from his house and asked to put his signature on the recovery memo. However, PW4 has not supported the prosecution case as he has been declared hostile. PW5 Manmohan Singh has stated that on 8.7.2001 while he was posed as MHC in Police Station, Una, received three parcels of the case property which he deposited to him by Inspector Dharam Chand, SHO, Police Station, Una along with the ‘N.C.B Form’. One parcel of sample was sent through Constable Harbans Singh to C.T.L Kandaghat along with seal impressions and ‘N.C.B Form’. The case property was entered in register No. 19 of the Malkhana register. HHC. Harbans Singh (PW6) has stated that H.C.Manmohan Singh handed over one parcel of sample to him along with ‘NCB Form’, which he delivered at CTL Kandaghat on the same day without any tempering. SI Bhagwant Singh (PW7) has stated that in the month of July, 2001, he was posted as Reader to Superintendent of Police, Una. He was handed over the information report on 8.7.2001 by Superintendent of Police, Una, pertaining to this case and accordingly a special report was recorded as Ext.PQ. PW8 Dharam Chand, Inspector has stated that PW9 produced before him the case property along with ‘N.C.B Form’ (Ext.PP/1) on 8.7.2001 which he resealed with seal ‘A’ and also sealed ‘NCB Form’ with seal impressions 5 of seal ‘A’ which were taken on Ext.PO/1. Thereafter, the case property was deposited along with the ‘N.C.B Form’ and Ext.PO/1 with M.H.C. Police Station, Una. PW8 Dharam Chand has further stated that he did not verify the correctness from the prosecution witness PW4. 6. ASI Akshay Kumar (PW9) has stated that at the relevant time he was present near old Tehsil Chowk, Una and sent statement Ext.PA through Constable Vipon Kumar to Police Station, Una and in that reference F.I.R. Ext.PB was registered and information report Ext.PF was prepared and sent through PW 3 HHC Sher Bahadur to Superintendent of Police, Una. Thereafter PW9 went towards 84 Porian where the accused was apprehended in the presence of witness PW4 Ram Kishan and one Mangat Ram. Search was made and 1 Kg. 300 grams of charas was recovered from the accused. Samples were taken out and sealed with impressions and the case property was deposited to Malkhana. The Station House Officer resealed the parcels of the case property with seal ‘A’ and thereafter deposited the case property with MHC. Police Station, Una. PW9 prepared the site plan (Ext.PS). The accused was apprehended in the Khud on the point from where the stairs commences for Una town. PW9 conducted the proceedings followed by preparation of memos etc. at that point itself and there is no shop or residential house at that point. So PW9 was sitting on the stairs and prepared the papers along with 5-6 police officials. PW9 further stated in his cross-examination that he filled the ‘N.C.B Form’ on the 6 spot and did not take the prosecution witness Sh.Ram Kishan to the Police Station. 7. After going through the testimonies of the prosecution witnesses, nothing is emanating from these witnesses that from where the scales have been arranged, where the contraband goods were measured, who brought the scale, weights and measures. In view of the testimony of Constable Ranjit Singh (PW1), PW9 was sitting on a bench outside the shop, whereas, PW9 however denied the presence of any house or shop at the place of occurrence. 8. In view of the testimony of PW1, the recovery was made at 84 Porian, Una near Shiv Mandir, whereas, in view of the testimony of PW9 the recovery of contraband goods was made on the point from where the stairs commences for Una town where no shop or residential house is located. Contrary to testimony of PW9, ‘N.C.B Form’ does not appear to have been prepared at the spot and no seal has been put up on Ext.PP/1. Therefore, it is difficult to know that what contraband goods/case property was sent with ‘N.C.B Form’ and in respect of which case property and chemical report was submitted. ‘N.C.B Form’ at item No.1 was filled up with the same ink. Ext. PP/1 also indicates that the samples of 50 grams each were taken into possession. It has also not been indicated that by which road certificate the case property was sent. It is also not emanating from the prosecution witnesses that where the case property was kept. The record/register with regard to case property was not 7 produced by the prosecution. Such aspect creates doubt in weight and identity of the contraband goods and also the place from where the actual recovery was made. 9. On the basis of materials and evidence on record, learned Sessions Judge, Una, has rightly arrived at the conclusion that the prosecution has failed to prove the guilt of the accused beyond shadow of reasonable doubt. We are also of the considered view that the prosecution has failed to bring home the guilt of the accused beyond shadow of reasonable doubt and there is no scope of interference in the impugned judgment. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 10. The bail bonds furnished by the accused/respondent are hereby discharged. (R.B.Misra), Judge. (Dev Darshan Sud), Judge. August 8, 2011(R)