IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 174/1994 Date of decision: 17. 8. 2009 State of H.P. …..Appellant Versus Vijay Kumar ……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. J.S. Rana Assistant Advocate General. For the respondent : Mr. Vinod Gupta, Advocate. Surjit Singh (Oral) State has appealed against the judgment dated 8.4.1994 of the learned Sessions Judge, Chamba, whereby respondent Vijay Kumar, who was tried for offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for allegedly possessing charas, has been acquitted. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - Case of the prosecution which led to the trial of the respondent may be stated thus. On 23rd September, 1993, PW-7 Rai Singh, S.H.O. Police Station Sadar, Chamba accompanied by some other police officials went for routine checking to a place called Rampur. There, PW-1 Kartar Singh, who is employed as a constable, but was on leave those days met him. When they were talking to each other, a bus came, from which PW-2 Man Chand alighted. Soon thereafter, two persons, including respondent Vijay Kumar, were seen coming on foot from Tissa side. On seeing the police, respondent became nervous, which aroused the suspicion of police. He was overpowered. PW-7 Rai Singh S.H.O. told him that it was suspected that he was carrying charas and so it was intended to search his person and in case he so desired, he could be taken to a Gazetted Officer or a Magistrate for his personal search. Respondent expressed desire to be searched on the spot. Thereafter, a bag (Jhola) which was slung on respondent’s left shoulder was searched. It was found to contain charas wrapped in a plastic - 3 - bag. On being weighed, it was found to be 400 grams. One sample weighing 10 grams was separated. Sample was made into a parcel and the same was sealed with a seal which produced the impression of English letter “H”. Specimen impression of the seal was taken on a separate piece of cloth. Sample was sent to the Chemical Examiner who reported that it contained 33.72% resin of cannabis plant and so it was a charas. Report is Ext. PM. Respondent was charged by the trial court. He pleaded not guilty. So he was put on trial. At the end of the trial he was acquitted, as aforesaid. We have heard the learned Assistant Advocate General as also the learned counsel for the respondent and perused the record. From scrutiny of the evidence, we find that probably PW-1 Kartar Singh was not present on the spot. According to him, he was already with the S.H.O. at the site where the respondent was apprehended when a bus came, from which PW-2 Man Chand alighted. However, PW-7 Rai Singh S.H.O. says that both the witnesses (which - 4 - implies Kartar Singh PW-1 and Man Chand PW-2) alighted from a bus which arrived at the spot within a few minutes of his reaching Rampur where the respondent was apprehended. Again, according to the S.H.O., charas was wrapped in a sky blue plastic bag, but PW-1 Kartar Singh stated that bag was green or blue. These contradictions may on the face of it appear to be minor, but in fact they are not, because they render the very presence of PW-1 Kartar Singh on the spot quite doubtful. The other witness (PW-2 Man Chand) is hostile. The above stated position apart, report Ext. PM of the Chemical Examiner, can also not be made the basis for holding that the stuff that was allegedly recovered from the respondent, was charas. Reason is that on the N.C.B. Form facsimile of the seal was not affixed. Only letter “H” was written in hand indicating the specimen of seal. Sample was sealed with a seal which produced letter “H” of English alphabet. Specimen impressions of the seal were taken on a piece of cloth. That piece of cloth was - 5 - not sent to the Chemical Examiner. Not only that there is no evidence indicating that that piece of sample was sent to Chemical Examiner, but also we find that the piece of cloth on record, which is Ext. PB, it is not marked or signed by the Chemical Examiner. That suggests, it was not sent to him along with sample. In view of the above stated position, we do not consider this to be a fit case for interfering with the judgment of acquittal. Hence appeal is dismissed. (Surjit Singh),J. August 17, 2009 (Surinder Singh),J (cm)