HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.315 of 2000. Decided on: September 22, 2010. State of H.P. …Appellant. VERSUS Vicky Rajput & Anr. ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the Appellant: Mr.R.K.Sharma, Sr.Addl.A.G. with Mr.Rajinder Dogra, Addl.A.G. For the respondents: Mr.Vipan Rajta vice counsel for respondent No.1. Mr.Chaman Negi, vice counsel for respondent No.2. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 2nd August, 1999, passed by learned Sessions Judge, Shimla, H.P., in Sessions Trial No.2-S/7 of 1999, acquitting the respondents / accused persons under Whether the reporters of the local papers maybe allowed to see the judgment? …2… Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). 2. The prosecution case, in brief, was that on 28.10.1998, Head Constable Rajesh Kumar, Police Station, Sadar, Shimla, accompanying constables Jagdev Chand, Bhupinder Singh and Ashok Kumar had gone towards Lower Bazar in connection with patrol duty. At about 12.50 PM, while returning to the Police Station, they spotted respondents Vicky Rajput and Shishu Pal near Ambar Hotel, Ram Bazar. Accused Vicky Rajput was holding a soil coloured plastic bag and was showing its contents to accused Shishu Pal. Shishu Pal had been exploring the contents of the bag with one of his hands inside the said bag. On this, the Head Constable suspected that the accused persons were carrying some contraband goods and on associating two Sikh gentlemen, passing by the side, where the two accused were present and in the presence of those two Sikh gentlemen as well as Additional Superintendent of Police Mrs.Satwant Atwal, checked the contents of the plastic bag. The bag contained another yellow coloured plastic bag in which Charas, in the shape of balls and fingers, was recovered. On weighment, the recovered Charas was found to be 800 grams. Two samples of 25 grams each were separated. The sample and bulk Charas …3… were separated into three parcels and each parcel was sealed with seal ‘H’ and the sample was sent for chemical examination. 3. After investigation, the respondents / accused were charged for the aforesaid offence and the case was committed to the Sessions Court. 4. In order to prove its case, the prosecution has examined as many as five witnesses, whereas, the respondents / accused, through their testimony under Section 313 Cr.P.C., have denied the prosecution case. 5. On analysis of the prosecution witnesses and materials on record, we find that PW-1, Parminder Singh, is one of the two independent witnesses of the locality, who allegedly witnessed the search, did not support the prosecution case. However, independent witness, namely, Amrit Pal was called at Ambar Hotel and was made to sign certain papers. PW-3, HC Rajesh Kumar, the star witness of the prosecution, in his endeavour to support the prosecution case, has stated that on 29.10.1998, around 12.50 PM, when he, in the company of police party, searched the yellow coloured bag carried by the accused, Charas was recovered. PW-4, Mrs.Satwant Atwal, in her endeavour to support the prosecution case, has stated that she went to the spot and by then the Station House Officer Ramesh …4… Pathania had already reached there and Charas weighing 800 grams was recovered from the bag of accused persons. PW-5, Ramesh Pathania, has made the statement similar to that of PW-4. The additional facts testified by him are that he had kept the case property in an almirah, the key of which remains with him and one of the two samples had been sent by him to the Chemical Examiner and on the receipt of report Ext.PL from the Chemical Examiner, he prepared the challan and got the same presented in the Court. 6. On analysis of the prosecution witnesses, we notice contradictions in the testimony of PW-3 Rajesh Kumar, PW-4 Mrs.Satwant Atwal and PW-5 Ramesh Pathania and we also notice that the independent witnesses did not support the prosecution case. PW-3, HC Rajesh Kumar, has stated that Mrs.Atwal reached the spot before the arrival of the Station House Officer but Mrs.Atwal (PW-4) and Mr.Ramesh Pathania (PW-5) have stated just the opposite. According to Mrs.Atwal, when she reached, the Station House Officer was already there. Ramesh Pathania (PW-5) has also stated that he reached the spot ahead of Mrs.Atwal. PW-4 has further stated that when she reached the spot, the accused persons had already been made to sit inside the Ambar Hotel and it was there that the …5… proceedings, like weighment of the Charas and the taking of sample and the sealing of the samples and the rest of the recovered stuff were conducted and the record of such proceedings, in the form of various memos was prepared. PW-4 has further stated that the accused, the police officials and the witnesses sat in the restaurant of the Amber Hotel to conduct the proceedings and to prepare the record of such proceedings. However, PW-5 Ramesh Pathania, who conducted such proceedings, has stated that the same were conducted outside the hotel between the edge of the road and the porch of Amber Hotel and the record of such proceedings was prepared in the lobby of the hotel. PW-4, Mrs.Atwal, has made self contradictory statement. Initially, she stated that when she reached the spot, the respondents / accused and the police people were sitting inside the hotel. In cross examination, she changed her statement and stated that she reached the spot, the police officials were standing outside the hotel while the accused had been made to sit in the hotel. She did not stick even to this changed statement and made a further change when she said that the accused and the witnesses also might have been standing outside the hotel when she reached there and that her statement in the Court that they all were sitting …6… inside the hotel might not be correct. PW-3, Rajesh Kumar, has also made a self contradictory statement in the sense that in examination-in- chief, he stated that Mrs.Atwal reached the spot at 1.40 PM. In cross examination, he has stated that he and other police officials remained on the spot for 15 to 20 minutes after the arrival of Mrs.Atwal but at the same time he stated that the independent witnesses remained with the police on the spot up to 3.30 PM and the SHO returned to the Police Station at 4 PM, whereas, the Police Station is hardly five minutes walk from the place of occurrence. 7. Besides the above contradictions, we notice that no evidence has been led by the prosecution to link the report of the Chemical Examiner Ext.PL with the stuff allegedly recovered from the accused persons. PW-5, Ramesh Pathania, has stated that he had kept the case property in an almirah, the key of which used to be with him, though he has further stated that he had sent one of the two samples to the Chemical Examiner but he is silent about the mode of dispatch. According to report Ext.PL, the sample was received in the Laboratory through Constable Ashwani Kumar No.634 but neither the said Constable has been examined as a witness nor PW-5 Ramesh Pathania has stated that the sample was sent …7… by him through Constable Ashwani Kumar. We also observe that where the sample changes several hands before reaching the Laboratory, all those persons who handled the sample, should have to be examined and, as such, possibility of the sample having been changed or tampered with cannot be ruled out. The learned Sessions Judge has examined all these aspects very thoroughly and has also found that the sample and its report cannot be said to be reliable one, which has made the prosecution case doubtful. 8. In view of the inconsistencies and contradictions on record and in view of the absence of link evidence, the learned Sessions Judge has rightly come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope for interference in the impugned judgment and the criminal appeal, being devoid of any merit, is accordingly dismissed. 9. Bail bonds, furnished by the respondents, are hereby discharged. (R.B.Misra), J. September 22, 2010. (V.K.Sharma), J. (soni)