1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 470 of 1996 Decided on September 1, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Mahesh Kumar & Others. ...Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr.Rajinder Dogra, Additional Advocate General, with Mr. Anil Jaswal, Deputy Advocate General. For respondent No.1: Mr.Puneet Raj, vice counsel Mr.Rajnish Maniktala, Advocate. For respondent No.2: Mr.G.S. Rathore, Advocate. For respondent No.3: Mr. Virender Rathore, Advocate. Respondent No.4 Rajesh Kumar, personally present in the Court. Justice R.B. Misra,J. (Oral) Out of four respondents-accused, three respondents-accused were being represented by their respective learned counsel and only bailable warrants were issued for procuring the presence of respondent-accused No.4, however, in reference to our order dated 28th July, 2010, respondent- accused No.4 is personally present in the Court, therefore, he shall be heard on merits and at his choice, he shall be represented by Mr. Virender Rathore, Advocate for respondent- accused No.3. 2. The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 2 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 8.3.1996, passed by Learned Additional Sessions Judge, Kangra at Dharamshala, H.P., in Sessions Case No. 18-K/VII-1994, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), acquitting the alleged accused/respondents. 3. The prosecution case is that a search of four respondents-accused, namely, Mahesh Kumar, Baldev Kumar, Partap Chand and Rajesh Kumar, was made on 26.3.1994 at about 6.45 P.M., near Forseith-Ganj, while they were coming in Maruti Van No.HP.02-3809 being driven by accused Partap Chand. S.I. Hira Lal, the then Station House Officer, Police Station, Dharamshala, received a secret information that suspected persons were carrying 'charas', on such information, FIR No.82 of 1994 was recorded in the Police Station and an information was given to Dy.S.P., and SI Hira Lal accompanying ASI Kashmir Singh, ASI Gurdas Ram, Constables Budhi Singh, Milap Chand and Ajit Singh, went to Foreseith-Ganj in a Tempo No.HIK-287, driven by Constable Mohinder Singh. On the way, Devi Lal Constable alongwith Manoj Kumar Pradhan and Vijay Kumar as independent witnesses joined and Nakka was arranged and accused were apprehended and they were told that whether they wanted to be searched by the police or by the Gazetted Officer, on their agreeing personal search of accused Mahesh Kumar was made. Accused Mahesh Kumar was said to be occupied front seat of the van, being driven by accused Pratap Chand, was carrying 1700 grams 'charas' wrapped in a 3 polythene and kept in a cloth bag, hung by him under his pull- over. Whereas, no other incriminating material was recovered from accused Baldev Kumar, Pratap Chand and Rajesh Kumar. Out of 1700 grams of 'charas' recovered from accused Mahesh Kumar, two samples of 65 grams each were sealed separately and were put in different packets with seal 'C' and the remaining 'charas' was kept in bulk and samples were sent for chemical examination. 4. After investigation, all the accused were charged for the offence under Section 20 of the 'NDPS Act'. In order to prove its case, the prosecution has examined as many as 8 prosecution witnesses. Whereas, the accused through their statements under Section 313 of Cr.P.C., have denied the prosecution case. 5. On scrutiny of the prosecution witnesses and material on record, we notice that PW.1 one of the independent witnesses was said to have been the witness of search, seizure and recovery of 'charas' from the personal search of accused Mahesh Kumar. Another independent witness PW.2 Vijay Kumar has not supported the prosecution case as both the independent witnesses (PW.1 and PW.2) have consistently stated that the police has not apprised the respondents-accused that they have a right to be searched and whether they want to be searched by police officials or Magistrate or by a Gazetted Officer. In the facts and circumstances, mandatory requirement of Section 50 of 'NDPS Act' has not been complied with which is a serious lacuna in making the prosecution case fatal. Though all the four respondents-accused were travelling in the same 4 Maruti Van, but only from the personal search of accused Mahesh Kumar, incriminating items were recovered and nothing was recovered from other respondents-accused. We further notice that out of two sealed samples taken out from the recovered 'charas', on the spot, the second part of the sample was required to be deposited by the investigating officer immediately in the Court, but it has been admitted by PW.8 Inspector Hira Lal, in his statement on record dated 30.3.1995 that he had deposited that part of the sample in the Court at very belated stage. Prosecution evidence in the form of statements of PW.1 Manoj Kumar, PW.2 Vijay Kumar (independent witnesses), PW.3 Balak Ram and PW.8 Inspector Hira Lal, is contrary to the prosecution case and 'charas' was concealed by accused Mahesh Kumar under his pull-over. Therefore, the alleged recovery of 'charas' from accused Mahesh Kumar, under the circumstances, cannot be attributed to the knowledge and possession of other accused persons named above. As per testimony of PW.1 Manoj Kumar and PW.2 Vijay Kumar, accused Baldev Kumar was not present in the vehicle, but was later on summoned to the spot, by the police. 6. Keeping in view the inconsistencies, discrepancies and contradictions learned Additional Sessions Judge, has carefully analyzed the prosecution witnesses and has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings given by learned Additional Sessions Judge. In view of the aforesaid facts and 5 circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 7. The bail bonds furnished by the accused/respondents are hereby discharged. (R.B. Misra) Judge September 1, 2010 (V.K. Sharma) (Purohit) Judge