IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 354 of 2000. Date of decision: 22.11.2010. State of H.P. ….. Appellant. Vs. Jethi Devi …. Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr R. K. Sharma, Senior Addl. Advocate General. For the respondent : Mr. Y.P.S. Dhaulta, Advocate Sanjay Karol J. (Oral. For an offence, which is alleged to have been committed on 4.4.1999, accused was put to trial. In terms of judgment dated 1.1.2000 passed by learned Addl. Sessions Judge, Mandi, in Sessions Trial No. 18 of 1999 titled as State of H.P. vs. Jethi Devi, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that on 4.4.1999 at about 11.15 A.M. Sh. Jagat Singh (PW-1), H.C. Incharge Police Post, Bali Chowki was on his way to Police Station Aut to collect his salary for the month of March, 1999. At Zero point Bali Chowki PW-1 was waiting for a bus. When the bus came he noticed 2- Whether the reporters of the local papers may be allowed to see the Judgment? 2 3 persons alighting from the same. Jethi Devi (accused) who was carrying a bag (Ext.P2) on her shoulder was one of them. Noticing the police she became nervous. Under suspicion she was questioned by PW-1 and disclosed her name as Jethi Devi. PW-1 became suspicious that accused may be carrying some contraband substance, therefore, he asked Sh. Parkash Chand (PW-4)who also happened to be there to call for two female independent witnesses. Accordingly Smt. Chuni Devi (PW-2) and Smt. Rukmani Devi (PW-3) were called at the spot. Accused was given an option of being searched before the Magistrate, police official or Gazetted Officer. She gave her option of being searched by the police official vide memo Ext.PW-1/B. Upon search it was found that in the bag accused was carrying contraband substance, which upon weighment was found to be 1900 grams. Two samples of 20 grams each of charas were taken and sealed vide seal impression ‘H’. Remaining sample was also sealed and taken into possession vide recovery memo Ext.PW-1/E. Sealed sample was sent to the Police Station. On the basis of the rukka, F.I.R. No. 37/99 dated 4.4.1999 under Section 20 of the NDPS Act was registered with Police Station, Aut. Sealed samples were sent for Chemical Analysis to the Chemical Examiner who gave his report (Ext.PX). Accused was arrested on the spot. With the completion of investigation challan was presented in the Court for trial. 3 3. Accused was charged for having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to which she did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined 10 witnesses and the statement of the accused under Section 313 Cr.PC was also recorded. 5. Court below acquitted the accused of the charged offence, hence the presence appeal. 6. Independent witnesses Smt. Chuni Devi (PW-2) and Smt. Rukmani Devi (PW-3) have not supported the prosecution at all. They were declared hostile and inspite of exhaustive cross-examination nothing could be elicited from their statements which would render their version to be untrue. They have in no uncertain terms deposed that no option of search was given to the accused nor did the accused consent for the same. Police also did not recover any contraband from the accused. In fact according to PW-3, HC Jagat Singh (PW-1) reached the police post only after 20 minutes of her reaching the police post. Significantly this statement goes un-rebutted. She also states that only MHC was present in the police post at the time when she was called. The aforesaid version stands corroborated by the un-controverted and un-rebutted testimony of PW-2. Their testimonies thus render the prosecution case to be extremely doubtful. 4 7. It is a settled position of law that if statements of official witnesses inspire confidence then without corroboration, they can be relying upon to hold the accused guilty of the charged offence. 8. According to PW-1, Sh. Parkash Chand (PW-4) was with him at the spot. No doubt PW-4 has supported the prosecution case but however his presence at the spot has not been explained. This renders his version to be doubtful. There was no occasion for him to have accompanied PW-1. He admits that on the date of alleged offence he was off duty from 9 A.M. onwards. Initially he admits that he has made statements in favour of the prosecution in 50 excise cases but later on clarifies that it was in 2-3 excise cases. He appears to be a stock witness. He admits that 10 to 15 passengers had alighted from the bus at the relevant time and other persons were also waiting at the spot. Now if this was so, then why did PW-1 not associate any independent and respectable witness present at the spot. This has not been explained. Shops were also close by. Some one locally ought to have been associated by the police. This witness admits that Court of Naib Tehsildar is just at a distance of 200 mtrs. from the spot of occurrence, yet he did not associate any one from there. 9. PW-1 has also narrated the version as per the prosecution case, but keeping in view the un- controverted version, as narrated by the other 5 prosecution witnesses, we have no hesitation in coming to the conclusion that testimony of PW-1 stands materially contradicted and does not inspire confidence. Even this witness admits that he had not prepared or submitted any special report to the senior officer. Same ought to have been done promptly by him. 10. Where did he get the scales to weigh the seized contraband has also not been explained. Prosecution case with regard to the search and seizure does not inspire confidence. 11. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra) Judge (Sanjay Karol) Judge November 22, 2010 (rana)