IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 317 of 1997 Date of decision: 27.08.2010 State of H.P. ... Appellant Versus Charan Dass … Respondent Coram : The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General. For the respondents: Mr. Vinay Thakur vice Mr. T.R. Chandel, Advocate. Per V.K. Ahuja , J. (Oral): This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Sessions Judge, Sirmour District at Nahan, dated 28.2.1992, vide which the respondent was acquitted of the charge framed against him under Section 15 of the Narcotic Drugs and Psychotropic Substances Act. 2. Briefly stated, the facts of the case are that on 2.5.1991 PW-8 SI Om Parkash, posted at Police Station Paonta Sahib was present at the Barrier Yamauna Bridge alongtwith other police officials for checking of the vehicles. At about 3.15 P.M., a Bus bearing registration No. CH-01G-5068 came from Dehradun to Chandigarh 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 side. It was checked at the Barrier. PW-8 S.I. Om Parkash found the accused sitting on seat No. 5 on the back side of the driver’ seat and was holding a cloth bag with his hands placed on his lap. On searching the bag, it was found that it contained a polythene bag containing Poppy Husk. On boarding the roof of the bus, it was found that one hold-all of bedding was lying there and conductor informed the Investigating Officer that it belonged to the accused. It was also brought down and two jute bags were found containing 15 Kgs. each of Poppy Husk was recovered. Samples of 100 grams each were taken out from all the three bags as per the procedure and these were taken into possession. On completion of the investigation, the challan was filed before the Court of learned Sub Divisional Judicial Magistrate, Court No. 1, Paonta Sahib, who committed the case to the learned Sessions Judge, who tried the respondent as detailed above, leading to his acquittal. 3. We have heard learned counsel for the parties and have gone through the record of the case. 4. To substantiate its case, the prosecution has examined 8 witnesses. PW-8 S.I. Om Parkash, Investigating Officer was the Incharge of the raiding party, who has stated that he found the accused sitting on seat No. 5 on the back side of the driver’s seat holding a cloth bag with his hands placed on his lap. Two jute bags were found containing 15 Kgs. each of Poppy Husk, while the cloth bag was found containing 500 grams of Poppy Husk. He also enquired from the accused and the conductor and it was found that one hold-all of bedding belonging to the respondent was also lying there, which information was given by the conductor and the accused admitted the 3 same belonging to him. On searching of the bag, two jute bags containing 15Kgs. each of Poppy Husk were found and one sample was taken from each of the bags. It was sealed on the spot. These were taken into possession vide Memo Ext. PB, which was attested by Chhavi Parkash, conductor and Jagdish Singh, driver of the bus. He prepared Rukka Ext.PC and FIR Ext. PD was registered. He prepared the site plan and completed the investigation at the spot. 5. PW-6 LHC Mohinder Singh and a member of the raiding party, has corroborated the statement of PW-8 S.I. Om Parkash on all the material particulars regarding the search and recovery of the Poppy Husk and its taking into possession by the police. 6. It is in evidence of the Investigating Officer PW-8 SI Om Parkash that he had associated the driver and conductor of the bus as witnesses at the time of conducting of search and taking into possession the Poppy Husk. The conductor of the bus, namely, Chhavi Parkash Gupta, who was associated, has been examined as PW-2, who has stated that the police checked the bus and found a bag tied on the back side of the seat of the driver. It was found containing half Kg. of Poppy Husk. A passenger was sitting on that seat who was asked about the bag. However, he stated that he cannot identify if the accused present in Court is the same passenger. His version suggests that the bag was found tied on the back side of the seat of the driver and was not found in the lap of the respondent as stated by two other eye witnesses. In regard to the search of bed hold-all from the roof of the bus, there is nothing in his statement to show as to whether it belonged to the accused. He has stated that he cannot say who had placed it there. PW-3 Jagdish Singh was the driver of the bus, who 4 was also associated at the time of recovery of the Poppy Husk from the possession of the respondent. He stated that he cannot say as to what was there in the bag. He cannot tell on which seat the accused was sitting. He also stated that the hold-all or the bags were not opened in his presence. He does not know what was inside the same. He only stated that they checked the roof of the bus. From there one hold-all was recovered, which was brought down from the bus and also stated that on checking of the bus, a Jholla was recovered from the accused present in Court. His statement does not prove that on which seat the accused was sitting and as to whether bag was lying in his lap as stated by the witnesses and in regard to the recovery of hold-all, he has not stated anything that it belonged to the accused. 7. Thus, from the above discussion of the evidence, it is clear that the Investigating Officer’s statement has been corroborated by PW-6 LHC Mohinder Singh in regard to the recovery of the bag from the possession of the respondent and as well as hold-all. Both the independent witnesses associated at that time, namely, conductor and driver of the bus have not supported the story of the prosecution. There is nothing on record in the statement of the Investigating Officer as to why he did not associate any other person at the time of search of the respondent when the bus was checked. He only associated these two witnesses, but both of them had not supported the prosecution story and, therefore, statements of the police officials in the absence of any independent corroboration becomes doubtful. 8. In regard to the recovery of hold-all, the case of the prosecution is that the accused had admitted that it belonged to him 5 and the conductor of the bus, namely, PW-2 Chhavi Parkash Gupta had stated that it belonged to the accused. The version of the prosecution witnesses in this regard cannot be relied upon since the conductor could not state as to whether the bag belonged to the respondent or that it was kept on the roof of the bus by the respondent. Therefore, evidence in this regard and recovery of the hold-all and Poppy Husk found therein cannot be linked with the respondent in any manner. In regard to the recovery of the bag, the statements of the Investigating Officer and other witnesses have not been corroborated by two independent witnesses that it was found and was recovered from the possession of the respondent. PW-2 Chhavi Parkash Gupta is specific that it was tied on the back side of the seat of the driver and therefore, the recovery of the same cannot be attributed from the conscious and exclusive possession of the respondent. Both these points had weighed with the learned trial Court in coming to its conclusion in disbelieving the prosecution story. 9. Apart from the above, the learned trial Court had also taken another ground for disbelieving the prosecution story that all the police officials never bothered to inform the accused of the ground of arrest even orally what to say in writing. Therefore, it was observed that the mandatory provisions of law had not been complied with. According to Section 100(6) Cr.P.C., a copy of the articles recovered and the copy of the recovery memo signed by the said witnesses shall be delivered to such occupant or person. The wording in the section is ‘shall’, meaning thereby that these provisions are mandatory. No steps were taken by the Investigating Officer and there is 6 nothing on record to show that these provisions were also complied with by the Investigating Officer. 10. In view of the above discussion, it is clear that the final findings recorded by the learned trial Court holding that the prosecution has not been able to prove its case beyond any reasonable doubt, cannot be termed as perverse, calling for an interference by this Court. 11. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. ( R.B. Misra ), Judge ( V.K. Ahuja ), August 27, 2010 Judge (BSS) 7