IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 231 of 2002 Date of Decision : July _6_ , 2011 State of Himachal Pradesh Appellant Versus Rakesh Kumar Respondent Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the appellant : Mr. R. K. Sharma, Senior Addl. Advocate General for the appellant/State. For the respondent : Mr. Ramesh Sharma, Advocate, vice Mr. N. K. Thakur, Advocate, for the respondent. Justice 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 24.12.2001 passed by the learned Addl. Sessions Judge, Una, H.P., in Sessions Case No. 34 of 2001 acquitting the accused/respondent for offences punishable under Sections 15 and 18 of the Narcotic Drugs and Psychotropic Whether reports of Local Papers may be allowed to see the judgment? 2 Substances Act, 1985 (in short the ‘NDPS Act’) in reference to F.I.R. No. 324/2001 dated 21.6.2001, Police Station, Una. 2. The prosecution case is that on 21.6.2001 at about 6.00 p.m., police party headed by HC-Bir Singh on receipt of a secret information raided the shop of the accused in his presence where 40 grams opium and 2 Kg-900 grams poppy husk was recovered from his shop. Investigation was conducted and accused was charged for the aforesaid offences. 3. In order to prove its case prosecution examined as many as nine witnesses and the statement of the accused under Section 313 Cr. P.C. was recorded in which he denied the prosecution case. 4. PW-1 Constable Vipan Kumar has stated that on 21.6.2001 at about 6 p.m. when he was near Shiv Mandir at Pir Nigah one person informed him that accused Rakesh Kumar is indulging in illicit trade of narcotic substances and for raiding the shop PW-1 while coming back to inform his senior officer at Una, came across HC-Bir Singh on way and then went with the police party, identified the accused at his shop and left the place to collect further information. PW-1 has stated in cross examination that he had gone by a private bus to Pir Nigah. 5. PW-2 HC-Sher Bahadur had received ruka Ext. PA by HC-Bir Singh to be taken to Police Station, Una, handed over the same near Pandori Sarai, Pir Nigah and delivered it at Police Station, 3 Una where the MHC recorded a formal F.I.R. Thereafter, he returned back to the spot at 8.30 p.m.. The proceedings were recorded at the spot in a room at first floor of the tea stall situated near the Shiv Mandir. 6. PW-3 Constable Ranjit Singh has stated that while on patrol duty on 21.6.2001 along with HC-Bir Singh, HC-Kuldeep Kumar, HC-Kamal Dev, Constable Subhash Chand, HC-Sher Bahadur, LC-Anupam Kali at Pandori Sarai came across Vipan Kumar who came there and got recorded his statement with Bir Singh. Bir Singh prepared information report under Section 42 of the NDPS Act and delivered the same to PW-3 for taking it to the Superintendent of Police, Una which he delivered at his residence at 7.30 p.m. PW- 3 stated that he came in a private bus to Una and at that time many people were present on the spot. There is contradiction in the statements of PW-1 and PW-3. In view of the testimony of PW-3 as many as six police officials were accompanying him on 21.6.2001 when Vipan Kumar (PW-1) informed about the illegal trade of contraband goods being made at the shop of the accused/respondent and as stated by PW-3 he came by a private bus to Una and was associated with the patrolling party, whereas, from the statements of PW-1, there appears nothing that raiding party was constituted. 7. PW-4 HC Kuldeep Kumar has stated that all the police officials as stated by PW-3 were present at Pandori Sarai near Pir 4 Nigah where Constable Vipan Kumar got recorded his statement to Bir Singh at 6 p.m. about the illicit trade of contraband goods, Bir Singh accordingly prepared information report Ext. PB and sent the same to the Superintendent of Police, Una. Independent witnesses Sh. Balbir Singh and Sham Singh were associated while going to the tea stall of the accused. Accused was told by Bir Singh that there was suspicion that he was in possession of opium and poppy husk and as such personal search was required to be made and he was given an option whether he wanted to be searched in presence of a Gazetted Officer or a Magistrate or to police and after obtaining his consent, his personal search was made. During search, one polythene packet was found from the inner pocket of the pant and on opening the same, opium was recovered and in the right side pocket of the pant currency notes amounting to `3150/- were recovered. During search of the tea stall one plastic bag was recovered and on opening the same one another polythene bag was found from which poppy husk was recovered. Weights and scales were arranged and opium was weighed which was found to be 40 grams. Two samples of 5 grams each were taken and all the parcels were sealed with seal impression-O. The poppy husk was weighed and found to be 2 kg-900 grams out of which two samples of 50 grams each were taken and all the sample parcels and remaining poppy husk were sealed with seal impression-O. PW-4 in cross examination was not able to indicate where Bir Singh joined independent witnesses. The spot of investigation was situated 70 – 5 80 yards from Pir Nigah bus stand and the tea stall is visible from the bus stand. 8. PW-5 Sham Singh has stated that he was running a shop of ‘parshad’ at Pir Nigah temple, however, has not supported the prosecution case by stating that he did not join the raiding party. PW-5 has also declined that anything was recovered from the possession of the accused/respondent. In cross examination of PW- 5 did not support the prosecution case. 9. PW-6 SI-Ranjit Singh has stated that HC-Bir Singh produced before him two samples of five grams each with 30 grams opium in another parcel and two sample parcels of poppy husk 50 grams each and its bulk parcel and he resealed the same with seal impression-T and also signed the ‘NCB form’ and the sample of seal was also taken on a piece of cloth Ext. PK. 10. PW-7 HC-Manmohan Singh has stated that on 21.6.2001 SI-Ranjit Singh deposited with him two samples of opium along with its bulk and two samples of poppy husk along with its bulk duly sealed with seals ‘O’ and ‘T’ and accordingly on 23.6.2001 PW-7 sent one sample of opium and one sample of poppy husk to C.T. L. Kandaghat through LHC Bhajan Singh. 11. PW-8 HHC Harbhajan Singh was handed over one sample of opium and one sample of poppy husk sealed with seal ‘O’ and ‘T’ and NCB form by PW-7 and thereafter PW-8 deposited the same at C.T.L. Kandaghat on 25.6.2001. 6 12. PW-9 HC-Bir Singh has stated that on 21.6.2001 at about 6 p.m. constable Vipan Kumar gave a statement Ext. PA that accused is indulging in illicit trade of opium and poppy husk. Statement Ext.PA was sent to Police Station, Una through HHC Sher Bahadur and has also sent information under Section 42 of NDPS Act through Constable Ranjit Singh and accordingly HC-Bir Singh formed a raiding party consisting of Balbir Singh and Sham Singh and raided the shop of the accused where he was found alone. 13. PW-9 expressed his suspicion to accused vide Ext. PC. On obtaining consent of the accused/respondent his personal search was made and on his personal search from the right side pocket of his pant a polythene bag containing 40 grams of opium and `3150/- was recovered from the inner right pocket of the pant. Similarly on search of the shop a bag containing 2 k.g. and 900 grams poppy husk was recovered. Out of the recovered opium two samples of five grams each were separated and two samples of 50 grams each out of the poppy husk were also separated. PW-9 has stated in cross examination that at the time of search and seizure many people had gathered at Pir Nigah and thousands of people come there. The shop was open at that time and any person could have entered in the shop, however, PW-9 did not record any statement or investigate the accused about the fact that how many persons were running the shop and also about any servant. PW-9 did not record any statement regarding ownership of the shop as there were three shops including the shop in question in the same line. Two shops 7 were closed at that time. Many people had gathered at the spot after the search. There is vacant land on the back side of the shops and as per testimony of PW-9 made in cross examination, Sham Singh and Balbir Singh have no shop or property near the shop of the accused and whole proceedings were prepared in front of the shop by sitting on benches and there are 3 to 4 villages between Una and Pir Nigah. The N.C.B. form was filled up by PW-9 on the spot and in front of the shop of the accused there is a Shiv Mandir and beyond that ‘mandir’ there is a ‘sarai’ where many people were staying and the father of the accused was not called by PW-9, however, he himself came on the spot. 14. On the analysis of the testimony of PW-9, it appears that only two persons were associated with the raiding party consisting of Balbir Singh and Sham Singh. PW-9 has not stated that how many police officials were associated with the raiding party. As per the testimony of PW-9 on personal search of the accused, a polythene bag containing 40 grams opium was recovered from the right side pocket of his pant and ` 3150/- was recovered from the inner right side pocket of his pocket contrary to which PW- 4 HC-Kuldeep Kumar has stated that one polythene packet containing opium was found from the inner pocket of the pant and ` 3150/- was recovered from the right pocket of the pant. PW-4 has stated that the weights and scales were arranged, however, has not given the details from which shop the same were arranged but PW-9 HC-Bir Singh has not indicated about the elements of weights and 8 measures and also not indicated anything as to how the weight and the quantity of the contraband goods was recovered on 21.6.2001. As per the testimony of PW-9 entire proceedings were prepared in front of the shop sitting on benches, whereas, as per the testimony of PW-2 HC-Sher Bahadur made in the cross examination he returned to the spot at 8.30 p.m. and at that time proceedings were undertaken in a room of first floor of the tea stall near the Shiv Mandir. On the analysis of the testimony of prosecution witnesses PW-2 and PW-9, the place of recovery and the place of proceedings become doubtful. From the testimony of PW-9, 40 grams of opium was said to be recovered from the right side pocket of pant of the accused/respondent, whereas, from the testimony of PW-4 HC- Kuldeep Kumar 40 grams of opium was recovered from the inner pocket, of the pant of the accused kept in a polythene packet. In our considered view the contradictions go to the root of the case. 15. From the analysis of the prosecution witnesses and the materials on record, we notice that all the police official witnesses have not indicated correctly the constitution of the raiding party. The independent witnesses have since become hostile and have not supported the prosecution case. Place of recovery, search and narration of recovery of the contraband goods also becomes doubtful. Apparent contradictions have been noticed from the testimonies of prosecution official witnesses. 16. The learned Additional Sessions Judge has rightly arrived at its findings that the prosecution has not been able to 9 prove its case beyond reasonable doubt. In our considered view also the prosecution has failed to bring home the guilt of the accused/respondent, as such, the appeal devoid of any merit is dismissed. The bail bonds of the accused/respondent are discharged. (Justice R. B. Misra), Judge. (Justice Sanjay Karol), Judge. July 6_, 2011 (PK)