IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 84 of 1996. Date of decision: 22nd October, 2009. State of Himachal Pradesh .. Appellant. Versus Mast Ram .. Respondent. Coram: The Hon’ble Mr. Justice Surjit Singh, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the Appellant: Mr.Ramesh Thakur, Assistant Advocate General. For the Respondent : Mr. M.S. Kanwar, Advocate. Surinder Singh, J. (Oral): State has challenged the judgment of acquittal of the respondent for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short “the Act”, for allegedly keeping in possession of 200 grams of Charas. Precisely, the facts giving rise to the present appeal can be stated thus. On 31st October, 1994 the police party headed by PW-7 Inspector/SHO Hans Raj while returning to Police Station after investigating case FIR No.287 of 1994, noticed the respondent near 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - Community Hall, Sundernagar carrying a bag and a big radio with him. On seeing the police party he tried to escape, thus he was apprehended on suspicion. Inspector PW-7 aforesaid gave him an option for search either by him or before a higher officer. The respondent exercised his option to be searched before the higher Officer. PW-7 took him to PW-2, R.S. Negi, Dy.S.P., who was present in the office of S.D.M. and conducted the search of the polythene bag in his presence and recovered 200 grams of Charas from his bag, out of which two samples of 25 grams each were separated and sealed with seal impression ‘A’. The remaining Charas was also sealed with the same seal. The sample of seal was taken on a separate cloth. The seal after its use was handed over to PW-1 Bhuvneshwar Lal. The said police officer also obtained the signatures of the witnesses on the case property. Seizure memo Ex.PA was prepared. It was signed by PW-1 Bhuvneshwar Lal and Karam Singh and note was also appended to it by Dy.S.P. aforesaid. The Rukka, Ext.PB was sent for the registration of the case. Site plan Ext.PE was prepared. The case property was deposited with PW-3 MHC Lalman. On 9th November, 1994, a sample parcel was sent through PW- 4 Constable Jamal Din to the CTL, Kandaghat for its - 3 - examination. The sample on examination, as per report Ext.PF, tested positive. It contained resin of 35.30% of cannabis plant, which is the content of the Charas. After completing the challan, it was presented in the Court for the trial of the respondent. The respondent was put on trial and at the end he was acquitted. We have heard the learned counsel for the parties and have carefully gone through the evidence on record. On the scrutiny of the evidence, we find material contradictions, embellishment and improbabilities, which render the entire prosecution case doubtful. As stated above, the admitted case of the prosecution is that when the respondent tried to escape he was carrying poly bag and a big radio. The alleged contraband was stated to have been recovered from the poly bag. According to PW-2, R.S. Negi, Dy.S.P. in whose presence the respondent was searched, the respondent was carrying only a plastic bag in his right hand which contained Charas. He did not say about carrying a big radio. Rather in cross-examination he stated that no such item was taken into possession by the police in his presence. Even he also did not care to notice as to whether the respondent was having any other item(s) in his possession. He further stated that except Ext.PA, seizure memo, no other document with respect to - 4 - the personal search of the respondent was prepared by the aforesaid Inspector. Further, PW-7 Inspector Hans Raj stated that when the respondent was apprehended with the plastic bag in his right hand Charas sticks were visible inside the plastic bag and it was then he was enquired about his identity and was given the option to be searched before the higher officer, but this explanation cannot be accepted as the respondent would not have walked unhesitantly through a bazaar at Sunder Nagar exhibiting the Charas in such a manner which could have been noticed by anyone. Further if that was so, then it is not understandable why such option was given by the Inspector to the respondent and what was the reason to take him before the higher officer when he already knew that the respondent was carrying Charas in a poly bag which was visible to him. Not only this, we also do not find any document on the file of the learned trial Court with respect to taking radio, lighter and wristwatch into possession by the police from the respondent. Contra PW7, stated that he had prepared such a memo. He stands contradicted by PW-1 Bhuvneshwar Lal, witness of search, who testified on oath that except the alleged contraband nothing was recovered from the respondent by the police. Further - 5 - PW1 stated that the respondent was also having a bag, the search whereof was never conducted by the police. The above position apart, neither PW-3 MHC Lalman stated about having deposited the sample of seal alongwith the case property in the Malkhana nor PW-4 Constable Jamal Din stated that alongwith the sample parcel he had also taken the sample of seal for its deposit in the Laboratory. NCB form also does not contain the facsimile of seal used. The road certificate was also not produced or proved. Thus, it is not understood as to what was compared by the official receiving the sample in the Laboratory in order to ascertain that the seal of sample tallied with the specimen impression of the seal. Therefore, the respondent could not be connected with the recovery of alleged contraband. For the aforesaid reasons, we do not find that the findings of acquittal arrived at by the learned trial Court are unreasonable. Therefore, the appeal is without any merit, hence dismissed. ( Surjit Singh ), J. 22nd October, 2009. ( Surinder Singh ), J. (rc)