IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 430 of 2001 Date of decision: 02.05.2011 ________________________________________________________________________ The State of H.P. .....Appellant. Versus Yash Pal. .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra, J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? ________________________________________________________________________ For the appellant: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondents: Mr. N.K. Thakur with Mr. Ramesh Sharma, Advocates. R.B. Misra, J (Oral). The present criminal appeal has come up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment dated 21.04.2000, passed by the learned Sessions Judge, Una, District Una, H.P. in sessions case No. 26 of 2000, acquitting the respondent-accused for the offence under Section 20 of the Narcotic Drugs and Psychotropic Act, 1985. 2. Prosecution case is that on 25.3.2000 at about 5:15 p.m SI Harnam Singh (PW-12) of Police Station, Una, while on patrol duty at bus-stand, Una, alongwith constable Harbans , ASI Amar Singh, HC Arjun Singh and constable Vinod Kumar received secret information 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... that accused-respondent is having charas in his kiosk (khokha) at the bus-stand. Statement under Section 154 Cr.P.C., Ex. PB, was recorded by ASI SI Harnam Singh and the same was sent through constable Harbans Singh to P.S. Una for registration of the case. Accordingly, a formal FIR, Ex. PF, was registered by MHC Manmohan Singh/PW-10 and a copy of the same was sent to S.P. Una, through constable Vinod Kumar/PW-4. Thereafter, SI Harnam Singh associated Devender Kumar/PW-9 and one Banwari Lal with the raiding party. After searching the khokha, charas weighing 380 grams was recovered from the drawer of the counter of khokha, which was kept in a polythene wallet. One scale and weight were also recovered therefrom. Two samples of 10 grams each were separated and sealed in parcels and the remaining charas was sealed in a separate parcel bearing seal 'A'. After completion of investigation, the accused-respondent was charged for the aforesaid offence. 3. Accused-respondent alongwith the case property was taken to Police Station, Una, and SI Harnam Singh produced the case property before the officiating SHO Ranjit Singh/PW-1, who rescaled the parcels with seal 'R' and the same was deposited with MHC Manmohan Singh/PW-10, who sent one sealed parcel of the sample on 3.4.2000 to CTL Kandaghat through constable Harbans Singh alongwith the NCB form, Ex. PP, filled by SI Harnam Singh on the spot. Report, Ex. PQ, was received from the CTL Kandaghat. 4. In order to prove its case, prosecution examined as many as twelve witnesses, namely, PW-1 SI Bansi Lal, PW-2 LHC Bansi Lal, PW-3 LHC Dalbir Singh, PW-4 C. Vinod Kumar, PW-5 Ram Kumar, ...3... PW-6 HC Ashwani Kumar, PW-7 LHC Harbans Singh, PW-8 HC Arjun Singh, PW-9 Devender Kumar, PW-10 MHC Manmohan Singh, PW-11 ASI Mohinder Sen and PW-12 SI/SHO Harnam Singh, whereas, accused-respondent through his statement under Section 313 Cr.P.C. denied the prosecution case. 5. On analysis of the prosecution witnesses and the materials on record we notice that even two independent witnesses associated by the police in the raiding party, namely, Davender Kumar/ PW-9 and one Banwari Lal, later one was not examined by the prosecution, whereas Devender Kumar/PW-9 has stated that police had come to his shop at about 6-6:30 p.m. and told that they want to go to the shop of Vijay Kumar. Accordingly, he accompanied by police party, went to the shop of Vijay Kumar, who, however, was not present at that time and the accused-respondent was standing outside the khokha. On inquiry, accused-respondent told that Vijay Kumar had gone somewhere and had asked him to stand there as a watch guard. On search by the police, nothing was recovered from khokha. Thereafter, one constable climbed on the roof of khokha and recovered some sticks, which on weighment was around 400 grams. Two samples were separated from the recovered material which were sealed in separate parcels and the remaining charas was sealed in third parcel. PW-9/Devender Kumar in his cross examination has stated that police party did not take him and Banwari Lal to khokha of the accused-respondent. As per the testimony of PW-9, made in the cross-examination, police obtained his signatures on all papers, whereas, he did not have the time to read the same. Accordingly, ...4... PW-9 was declared hostile. 6. S.I. Ranjit Singh/PW-1, officiating SHO, Police Station, Una, who had received one parcel and two sample seals with seal 'A' through ASI Harnam Singh, resealed the parcels and the same were deposited with MHC Manmohan Singh/PW-10. PW-2 HC Bansi Lal stated that on 25.3.2000 MHC gave him two envelopes containing copy of FIR and he handed over one to the S.P and other to the CJM on the same day. 7. PW-3 LHC Balbir Singh stated that he received special report in duplicate on 27.03.2000. PW-4 Constable Vinod Kumar stated that on 25.03.2000 at about 5 p.m. he received secret information that Yash Pal Sharma, that is, accused-respondent was doing the business of selling of charas. In the meantime, SHO met him at the bus-stand and he (PW-4) gave the information, which is Ex. PB, and thereafter SHO gave the information report to PW-4, which he gave to S.P. Una . As per the testimony of PW-4, made in his cross- examination, when he took information report to S.P. Una, the charas was already recovered. 8. PW-5 Ram Kumar, who was running a rehri at Una bus- stand, was called on the shop of Vijay Kumar with scales and weights and on weighing, the envelop containing something was found 360 grams and no sample was taken out nor weighment was made. PW-5 has further stated it is incorrect that khokha belonged to Yash Pal accused-respondent, however, he also denied that two samples of 10 grams were taken out and weighed by him. PW-5 has also denied that two samples and remaining articles were sealed with seal 'A' in his ...5... presence. 9. PW-6 HC Ashwani Kumar, being deployed as Reader to S.P., kept on record the copy of report, Ex. PC. PW-7 LHC Harbans Singh, who at the relevant time was present at bus-stand Una with SHO Harnam Singh, to whom rukka, Ex. PB, was given by the SHO, which he (PW-7) took to the police Station where FIR, Ex. PE, was recorded and on 03.04.2000 one sealed sample alongwith docket was given to him by MHC Manmohan Singh vide RC No. 124/2000 which he took to CTL Kandaghat and deposited that sample on the same day and then RC was returned to MHC. The sample was sealed with seals A and R. 10. PW-8 HC Arjun Dev in his endeavour to support the prosecution case has stated that Devender Kumar/PW-9 and Banwari Lal were associated with the raiding party and charas was recovered from khokha of the accused. Search of khokha was conducted in presence of independent witnesses and there was a drawer in the counter in his shop in which there was a polythene wallet on which 'Vijay Sweets' was inscribed. Charas was contained in that wallet in the shape of rounds and sticks. One scale of brass and weights of 5 grams and 10 grams were also found in the drawer. The charas was got weighed through Ram Kumar, rehriwala, and it was found to be 380 grams. Two samples of 10 grams each were separated from the same and they were sealed in two separate parcels. The remaining 360 grams charas was sealed in a separate parcel with seal mark 'A'. The seal was handed over to Devender Kumar/PW-9. PW-8 HC Arjun Dev has stated in his cross-examination that khokha is at a distance of ...6... 20-25 feet from the traffic post at the bus-stand and he has denied that accused is neither the owner of khokha nor does he runs the shop there. The testimony of PW-8 that he was present on the spot at the relevant time while making the alleged recovery of charas from khokha of the accused-respondent is contradicted by the testimony of PW-5 Ram Kumar who had denied making of any recovery and taking of two samples of charas and has also denied the contents of the same were 380 grams. As per the testimony of PW-5/Ram Kumar he was called on the shop of Vikay Kumar with scale and weights and he weighed the envelop containing something which was 360 grams. PW-5 has also denied that any seal, namely, seal 'A' was put on the sample. However, PW-5/Ram Kumar has not supported the prosecution case. 11. PW-9/Devender Kumar, who was said to have been associated as an independent witness with the police party in search and seizure of the alleged charas, has not supported the prosecution case while indicating that neither he nor Banwari Lal went to khokha of the accused with the raiding party. In view of the testimony of PW-9/Devender Kumar police conducted the search of khokha and nothing was recovered from khokha and thereafter one constable climbed on the roof of khokha and recovered some sticks, which on weighment was around 400 grams. As per the testimony of PW-9/Devender Kumar police did not take him and Banwari Lal to khokha of the accused-respondent. Therefore, nothing is emanating from the testimony of PW-9 about the presence of PW-5/Ram Kumar. 12. PW-10 MHC Manmohan Singh stated that on receipt of ...7... the statement, Ex. PB, he had recorded the FIR, Ex. PE. Thereafter, SI Ranjit Singh deposited the parcels, Ex. P1 to Ex. P3 and one more parcel of sample sealed with seals 'A' and 'R'. The case property was kept in the malkahana, which, however, was sent on 03.04.2000 vide RC No. 124/2000 through constable Harbans Singh to CTL Kandaghat. PW-11 ASI Mohinder Sen is a formal official witness. 13. PW-12 SI/SHO Harnam Singh Investigating Officer in his endeavour to support the prosecution case has stated that he conducted the search of khokha of the accused-respondent in his presence and in the presence of official and independent witnesses and recovered charas from the drawer of the counter of the shop of the accused-respondent, which was in the shape of rounds and sticks, which on weighment was found to be 380 grams. The scale and two weights were also recovered. The charas was got weighed through Ram Kumar on his scale. Two samples of 10 grams each were separated from the charas and were sealed with seal 'A' in different parcels. The remaining charas was sealed in a third parcel. The scale and weights were sealed in separate parcel with seal 'A'. Impression of the seal Ex. PN was taken . The seal was handed over for safe custody to PW-9/Devender Kumar. All these parcels were taken into possession vide memo, Ex. PH, which was signed by him and witnesses. PW-12/Harnam Singh has also stated that he did not find in his investigation that khokha in question belongs to Vijay Kumar and the accused-respondent also did not tell about it. As per the testimony of PW-12 there are 6-7 shops adjacent to khokha of the accused- respondent. PW-9/Devender Kumar has also a shop there. As per the ...8... testimony of PW-12 he inquired about the ownership of khokha because earlier also the accused-respondent was seen in khokha running the business. PW-12 has further stated in his cross- examination that he cannot say that khokha in question belongs to Vijay Kumar of Takka village as it had not come in his investigation. However, accused-respondent in his statement, made under Section 313 Cr.P.C, had denied that he did not have any khokha at the bus- stand. 14. On analysis of the prosecution witnesses and the materials on record we notice that the prosecution has not been able to prove and ascertain that from where the alleged recovery of charas was made. The charas was not recovered from the exclusive and conscious possession of the accused-respondent. 15. Out of the two independent witnesses, one was not examined for the reasons best known to the prosecution and the second witness, namely, Devender Kumar/PW-9 has not supported the prosecution case and has turned hostile, however, he has indicated that charas was recovered from the roof of khokha by a constable. 16. On analysis of the chemical examination report, we find that no facsimile seal was put over the samples sealed with seals 'A' as well as 'R'. Out of the recovered charas two samples of 10 grams of charas were said to be separated, whereas, chemical examination report indicates that the weight of the contraband goods was 6.7604 grams and the resin was 30.52% in it. The chemical examination report cannot be said to be a reliable document in absence of facsimile seal 'A' and 'R' put over it, whereas, original seal was available on a ...9... piece of cloth. 17. In the totality of facts and circumstance we find that the accused-respondent cannot be said to be in exclusive and conscious possession of charas especially in absence of proof of ownership of khokha. We apparently notice that the recovery of contraband was said to be 380 grams, whereas, in view of the testimony of PW-5/Ram Kumar it was 360 grams as such there is an apparent contradiction that two samples of 10 grams of charas were taken, whereas, the sample of contraband goods received for testing in the CTL Kandaghat was 6.7604 grams. Apparently, a doubt is being created in the prosecution case. 18. On analysis of the prosecution witnesses and the materials on record, the prosecution could not said to have proved its case beyond all reasonable doubt and in our considered view also, the prosecution has failed to bring home the guilt to the accused- respondent. Therefore, we do not find any occasion for interference in the findings arrived at by the learned Sessions Judge. In these circumstances, criminal appeal being devoid of merit is dismissed. 19. The bail bonds of the accused-respondent is discharged. (R.B. Misra) Judge (V.K. Sharma) Judge 2nd May, 2011 (virender)