HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 762 of 2002 Decided on: 12.12.2011 State of Himachal Pradesh ……… Appellant. Versus Raj Kumar alias Negi, son of Shri Prem Singh, Resident of 15 Miles, near Manali, District Kullu, H.P. ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Vivek Thakur, Additional Advocate General. For the respondent: Mr.Jeevesh Sharma, Advocate. Justice V.K. Ahuja, J.: This is an appeal filed by State of Himachal Pradesh under Section 378 of the Cr.P.C. against the judgment of the court of learned Sessions Judge, Kangra at Dharamshala, dated 25.7.2002, vide which the respondent was acquitted of the charge framed against him under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the Act. 2. Briefly stated, the facts of the case are that on 11.9.2001 at 3.30 a.m., PW-8 ASI Ramesh Singh, Police Station, Nurpur, was present at Naka with other police officials. They saw one person coming from Chowgan Bazar __________________________________________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - carrying one polythene bag in his hand and on seeing the police party, he tried to go back. On suspicion, he was intercepted. On opening the bag, another white coloured envelope was found containing charas in the shape of sticks and tablets. Two samples of 20 grams each were taken out of the bulk charas and the samples and the remaining charas was taken in possession as per procedure. The Investigating Officer prepared the ruka, sent the same for registration of the FIR and on completion of the investigation and on receipt of the report of the Chemical Examiner, the challan under Section 20 of the Act was filed before the learned trial Court, who tried the respondent leading to his acquittal. 3. On appraisal of the record of the case, the first question which arises for consideration is in regard to non-compliance of the provisions of Section 100(4) Cr.P.C. PW-8 ASI Ramesh Singh has simply stated that he apprehended the accused at 3.30 a.m., recovered the charas and completed the investigation. It was suggested to him that there are 8- 10 shops at the place including two shops of tea sellers and there is an office of the Electricity Department near the place. He admitted that the place is on the national highway. The residences of the SDM and the Judicial Magistrate are also at about 700 meters and he made no attempts to call any gazetted officer or any witness. He stated that he only called Yashpal Soga, PW-7, from whom the weights and measures were summoned, but the said Yashpal Soga himself did not go to the spot on the pretext that he was not well and sent the same through Shayam Lal, Constable, PW-3, who had gone to call him. The said Yashpal Soga while appearing in the - 3 - witness box as PW-7 stated that he had sent the weights and scales through Constable Shyam Lal, but he had not gone to the spot. 4. A perusal of the statement of the Investigating Officer shows that there is not even a whisper in regard to the compliance of the provisions of Section 100(4) Cr.P.C. He did not sated even a word that he made any attempts to associate independent witnesses or that they were not available since it was early morning. We agree that in the early hours of morning, it may not be possible to associate independent witnesses, but the Investigating Officer has to give an explanation in this regard as to why he could not comply with the provisions of Section 100(4) Cr.P.C. and since these provisions are mandatory in nature, he has to give an explanation for non-compliance thereof. In case some explanation is given and the court finds it plausible, it can hold that the provisions of Section 100(4) Cr.P.C. were complied with, but there is not even a whisper in this regard. 5. The law in regard to the compliance of the provisions of Section 100(4) Cr.P.C. is very clear. 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 - 4 - 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. 6. The provisions of Section 100(4) Cr.P.C. were also considered by their Lordships in Jarnail Singh versus State of Punjab, (2011) 3 Supreme Court Cases 521, wherein the observations made in paras 11 and 12 are relevant and are being reproduced below: “The first submission of Mr.Ujjal Singh, learned counsel, is that the appellant has been falsely implicated. We are unable to accept this submission. Merely because the prosecution has not examined any independent witness, would not necessarily lead to the conclusion that the appellant has been falsely implicated. It was clearly a case where the police personnel had noticed the odd behaviour of the appellant when he was walking towards them on a path which led to Village Mirzapur. It was the display of hesitation by the appellant on sighting the police party that Satpal Singh (PW 5) became suspicious. On seeing the police personnel, the appellant tried to run away from the scene. It was not a case where the prosecution has claimed that the appellant was apprehended on the basis of any earlier information having been given by any secret informer. It was also not a case of trap. In such circumstances, it would not be possible to hold that the appellant has been falsely implicated. 12. The prosecution has offered a plausible explanation with regard to non-joining of the independent witnesses. It was clearly stated by PW 5 - 5 - that the path on which the appellant was apprehended was not frequently used by the public. In fact, efforts were made to bring a member of panchayat or Sarpanch of the village. However, the Head Constable Baldev Singh who had been sent, reported that none of the villagers were prepared to join as independent witnesses. This reluctance on the part of the villagers is neither strange nor unbelievable. Generally, people belonging to the same village would not unnecessarily want to create bad relations/enmity with any other villager. Especially when such a person would be feeling insecure, having been accused of committing a crime.” 7. 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. 8. We need not refer to the other part of the evidence since the prosecution had examined only two witnesses of the occurrence, namely, PW-8 ASI Ramesh Singh and PW-1 Head Constable Hans Raj, who has corroborated the statement of the Investigating Officer. But in regard to joining of independent witnesses, PW-1 Head Constable Hans Raj had clearly stated that no witnesses were joined by the Investigating Officer. 9. The net result of the above discussion is that the non-compliance of the mandatory provisions of Section 100(4) Cr.P.C. leads to the inference that the conclusion drawn by the learned trial Court holding that the prosecution has failed to prove its case cannot be termed as perverse calling for an interference by this Court and the said - 6 - findings are liable to be affirmed. Therefore, the appeal filed by the appellant is dismissed. Bail bonds furnished by the respondent shall stand discharged. (Deepak Gupta), Judge. December 12, 2011 (V.K. Ahuja), (tilak) Judge.