IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.308 of 1996 Date of Decision: October 21, 2009 State of H.P. ..Appellant. Versus Tek Chand …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. P.M. Negi, Dy. A.G. with Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent :Mr. Vikram Thakur, Advocate. Surjit Singh, J. (Oral) State has appealed against the judgment dated 31.8.1995 of learned trial Court, whereby respondent Tek Chand, who was tried for offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has been acquitted. Case of the prosecution, which led to the trial of the respondent, may be noticed. On 25.11.1994 Whether reporters of the local papers may be allowed to see the judgment? - 2 - around 10 pm, when PW13 Bhim Singh , Additional SHO, Police Station Sadar, Mandi, was present in Pandoh Bazaar along with PW10 Gulab Singh Constable, PW11 Dhian Singh ASI and PW12 Shanti Kumar Constable, respondent was seen coming from Dam side with a bag slung on one of his shoulders. On seeing the police, he tried to withdraw. That arouses suspicion of the police party. Respondent was overpowered. He was informed that it was intended to search his person and the bag, which he was carrying and in case he so desired, search of his person could be arranged in the presence of a Gazetted Officer or a Magistrate. Respondent opted for being searched on the spot. From the search of his bag, a bundle made of black coloured cloth was recovered. On opening the bundle, it was found to contain Charas, which weighed 750 grams. Two samples, each weighing 10 grams, were separated. Samples and the bulk Charas were made into three separate parcels and the same were sealed - 3 - with seal that produced the impression of letters “DS” of English alphabet. Written report of search and seizure was drawn and sent to Police Station, where case was formally registered, vide FIR Ex. PW4/A. Case property was produced by PW13 Bhim Singh to PW4 Ravinder Singh, SI/SHO, Police Station, Mandi, who affixed his own seal that produced the impression of letter “D” and deposited all the three parcels containing samples and the bulk of recovered stuff with PW1 Hukam Chand, MHC. One of the two samples was sent to the Chemical Examiner, who vide report Ex.PC, opined that the sample contained resin of cannabis plant to the extent of 35.84%. On receipt of report, respondent was challaned. Trial court has acquitted the respondent holding that Section 50 of the Narcotic Drugs and Psychotropic Substances Act had not been complied with and the independent witnesses, associated by the police during search and seizure, namely PW1 Hukam - 4 - Chand, PW8 Prem Singh and PW9 Ved Prakash, did not support the prosecution version. We have heard the learned Assistant Advocate General as also the learned counsel for the respondent and perused the record. Learned counsel for the respondent very fairly concedes that Section 50 of the Narcotic Drugs and Psychotropic Substances Act, was not attracted as the recovery was effected not from the personal search of the respondent but from the bag, which he was carrying and, therefore, in view of the recent judgments of the Apex Court, this was not a case of personal search. However, learned counsel for the respondent says that there are several contradictions in the testimony of the police officials and when these contradictions are seen in the light of the fact that the alleged independent witnesses do not support the prosecution version, there cannot be any escape from - 5 - upholding the judgment of the trial Court. Also, he has urged that link evidence is not complete and, therefore, report of the Chemical Examiner Ex.PC does not stand connected with the stuff allegedly recovered from the respondent. We do agree with the submission of the learned counsel that there are contradictions in the statements of the police officials. According to PW10 Gulab Singh, after having been apprehended, respondent was taken to the shop of PW8 Prem Singh, where he was apprised of his right of being searched in the presence of a Magistrate or a Gazetted officer and after he opted for his search by the police officials, on the spot, his bag was searched at the shop of said Prem Singh (PW8). The other three police officials, namely, PW13 SI Bhim Singh, PW12 Shanti Kumar Constable, and PW11 ASI Dhian Singh, however, stated that the search of the bag of the respondent was conducted on the spot and that he was taken to the shop of Hukam - 6 - Chand only after the recovery was effected, for weighment of the Charas which had already been recovered at the spot after the search of the bag. This contradiction assumes significance, when considered in the light of the fact that independent witnesses, namely PW8 Prem Singh and PW9 Ved Prakash, do not support the prosecution version that they were with the police on the spot and search was conducted in their presence. Of course, both these witnesses are contradicted by their statements, under Section 161 Cr.P.C. Normally, a witness who is contradicted by his previous statement, with which he is confronted during the course of his examination in the Court, is not believed but there may be cases in which either side may successfully make use of the statements of such witnesses. In the present case, two independent witnesses, appear to have truly testified that they were not present when the search was conducted and stuff - 7 - was recovered. The reason is that PW10 Gulab Singh says that respondent was taken to the shop of PW8 Prem Singh and it was there that search was conducted and recovery effected from the bag, which the respondent was carrying. Both the independent witnesses, namely PW8 Prem Singh and PW9 Ved Prakash, have their shops near the spot. They were not supposed to be with the police party, even before the apprehension of respondent, as claimed by the police officials, because their shops being open, they were supposed to be present in their shops. Also, we find that link evidence is discrepant. PW13 SI Dhian Singh, stated that he produced the case property, i.e. three parcels containing samples and the bulk Charas to PW4 Ravinder Singh, SHO, who affixed his own seal which produced the impression of letter “D” of English alphabet. PW4 Ravinder Singh also testified that he had affixed his own seal “D” on the sealed parcels, but neither PW13 Bhim Singh nor PW4 - 8 - Ravinder Singh, says that specimen impressions of the seal used by PW4 Ravinder Singh, had been taken. PW1 Hukam Chand, MHC, with whom the case property was deposited by PW4 Ravinder Singh, also did not say that any specimen seal impression has been deposited alongwith parcel containing the samples and the bulk Charas. It is only PW2 HC Raj Singh, who took over the charge of MHC from PW1 Hukam Chand, who stated that he sent one of the two samples alongwith sample seals to the Chemical Examiner, through Constable Mani Ram. Mani Ram, who was examined as PW3, did not say that any specimen seal impressions were also carried by him alongwith the sample. He simply stated that he carried one sealed parcel which was handed over to him by PW2 HC Raj Singh. On the docket with which the sample was sent to the Chemical Examiner, i.e. Ex.PC, facsimiles of the seals used in sealing the parcels, are not there. That means specimen impressions of the - 9 - seals, used in sealing the sample parcel, which was sent to the laboratory, were not available with the Chemical Examiner, for comparison with the seal impressions on the parcel containing sample. Therefore, the report Ex.PC cannot be said to have been sufficiently linked with the samples allegedly separated from the recovered stuff. In view of the above stated position, appeal is dismissed. ( Surjit Singh ),J. October 21, 2009 (Surinder Singh),J. s.