1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 359 of 1997 Decided on October 1, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Desh Raj ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr.R.K. Sharma, Senior Additional Advocate General, with Mr.Rajinder Dogra, Additional Advocate General. For the respondent: Mr. D. Dadwal, Advocate. __________________________________________________________ Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 21.4.1997, passed by Learned Sessions Judge, Kangra at Dharamshala, H.P., in Sessions Case No. 11-N/VII-1996, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), acquitting the alleged accused/respondent. 2. The prosecution case is that on 18.1.1993, SHO Mohinder Singh alongwith other police officials was present at Indora Gharat, where he received a secret information that accused is coming alongwith a bag containing contraband goods / charas. After receiving such information, raiding party 2 was constituted and on seeing the police party, accused tried to run away, however, was apprehended. Accused-respondent was questioned that whether he wants to be searched by the police officials or before some gazetted officer, on his agreeing, search was made and charas was recovered wrapped in polythene. The recovered charas was weighed and it was found to be 2 kg. 500 grams. Out of the recovered charas, ten grams was taken out as sample and then sample and remaining charas were separately sealed and taken into possession. Thereafter, rukka was sent to police station, on the basis of which FIR was lodged. Sample was later on sent for chemical examination. 3. After investigation, the accused was charged for the offence under Section 20 of the 'NDPS Act'. In order to prove its case, the prosecution has examined as many as 4 prosecution witnesses, whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 4. The prosecution examined PW.1 Chunni Lal, an independent witness, PW.2 ASI Bhagwan Singh, PW.3 Head Constable Joginder Paul and PW.4 Inspector Mohinder Singh, Investigating Officer. 5. On scrutiny of the prosecution witnesses and materials on record, we find that Chunni Lal (PW.1) was only associated by the investigating officer as an independent witness, however, has not supported the prosecution case to the expectation of the prosecution. Another independent witness, namely, Surjeet Singh, was left over for the reasons best known to the prosecution. No other independent witness was 3 associated who could have supported the prosecution case, whereas, the place where contraband goods were recovered was not a solitude place where independent witnesses could not be associated. PW.4 Inspector Mohinder Singh, despite timely receiving the information, that the accused-respondent was carrying contraband goods, could not reduce the said information into writing. He has also shown his ignorance as to why the sample could not be sent for analysis immediately and retained in the Malkhana for about 2 ½ months. Further, the accused-respondent was not categorically apprised that he is entitled to be searched by the police officials or by gazetted officer or by a Magistrate and only on his agreeing, the personal search was made. PW.1 Chunni Lal has admitted that no written consent was obtained from the accused. According to PW.1 Chunni Lal no information was in the knowledge of PW.4, as such, he did not reduce the same in writing. 6. In view of the aforesaid facts and circumstances for non compliance of the mandatory requirement of Section 50 of the 'NDPS Act' and keeping in view the inconsistencies, discrepancies emanating from the prosecution witnesses, we notice that learned Sessions Judge has carefully analyzed the prosecution witnesses and has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view, there is no scope of interference in the findings given by learned Sessions Judge. In view of the aforesaid facts and circumstances, the present 4 criminal appeal, being devoid of any merit, is dismissed. 7. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge October 1, 2010 (V.K. Sharma) (Purohit) Judge