IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. : 87 of 2002 Decided on : 13.06.2011. ___________________________________________________________ State of Himachal Pradesh … Appellant. Versus Kirpa Ram … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. R.K.Sharma, Sr. Addl. Advocate General. For the respondent : Mr. Tara Singh Chauhan, Advocate. ____________________________________________________________ R.B. Misra, Judge (oral). The present appeal has come up for consideration after leave to appeal has been granted under Section 378 (3) Cr. P.C in reference to the impugned judgment dated 13.8.2001, passed by the learned Sessions Judge, Bilaspur, H.P, in Sessions Trial No. 4 of 2001, acquitting the accused-respondent for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 185 (for short ‘the NDPS Act’). 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2. The prosecution case in brief is that on 6.1.2001, at about 4.30 PM, when scooter No. HP-31-2057 of the accused was searched by the police at Beri in District Bilaspur, charas weighing 350 grams was recovered, out of which two samples each of 5 grams were taken and samples were thereafter put in three separate cloth parcels which were sealed with seal ‘K’. Rukka was sent to police station Barmana, on the basis of which a case under Section 20 of the NDPS Act was registered against the accused. Sample was sent to the Chemical Examiner, Kandaghat and on receipt of the report contents of the same were found to be ‘charas’. 3. In order to prove its case the prosecution has examined as many as nine witnesses, whereas, the accused- respondent through his statement under Section 313 Cr.P.C has denied the prosecution case. 4. Out of these nine witnesses, S/Shri Diensh Kumar (PW-1), Shyam Singh (PW-2), Shamsher Singh, Head Constable (PW-3) and Rajinder Kumar, Head Constable (PW-9) are the eye witnesses. Out of these four eye witnesses, S/Shri Dinesh Kumar (PW-1) and Shyam Singh (PW-2) are the independent witnesses. The remaining witnesses S/Shri Bhim Singh, ASI (PW-4), Karan Singh, Head Constable (PW-5), Teg Singh, Head Constable (PW-6), Bhag Singh, constable (PW-7) and Rattan Singh, Head Constable (PW-8) are the formal witnesses. Apart 3 from this, the prosecution has led in evidence documents which are Ext.PA to Ex.PH and Ext.PJ to Ex.PQ. During the trial the prosecution has also produced brown purse Ext.P-1, charas Ext.P-2 and sample of charas Ext. P-3. 5. PW-1 Dinesh Kumar has stated that on 6.1.2001, at about 2.00 PM, when he was going in his car from Bilaspur to Barmana, he noticed that many vehicles were standing near Beri on the main road and many persons had gathered there. PW-1 stopped his car and Head Constable Shamsher Singh told him that a bag had been recovered from one person. PW-1 had stated in his cross examination that the police did not take into possession the documents of the scooter in his presence, however, his signatures were obtained on three four papers which were already written. As per the testimony of PW-1 made in his cross examination, personal search of the accused was not done in his presence. PW-1 however had not supported the prosecution case. 6. PW-2 Shyam Singh, working as Clerk in Barmana Truck Union, has stated that one scooter was lying parked on the road side near Beri. While he was traveling in the car of PW-1 Dinesh Kumar from Beri to Barmana, he observed that some police officials were standing near the scooter. After stopping the car police told that a bag has been recovered from the person standing there. PW-2 has stated in his cross 4 examination that PW-1 Dinesh Kumar and he had signed the documents on the spot, out of which some were already written and some were blank. As per the testimony of PW-2 signatures were made by him without reading the contents thereon. 7. PW-3 Head Constable Shamsher Singh, has stated that on 6.1.2001, he along with Head Constable Rajinder Kumar and Constable Mohinder Singh, while on traffic checking at about 4.30 PM noticed the accused coming on scooter No. HP-31-2057 from Barmana side. Scooter was stopped and at that time Dinesh Kumar (PW-1) and Shyam Singh (PW-2) also came there from Bilaspur side in a car and in their presence dicky of the scooter was got opened from the accused and Head Constable Rajinder Kumar searched dicky of the said scooter and took out one leather bag known as money purse of brown colour. PW-3 brought weighing scales from the nearby shop and on weighing charas was found 350 grams. Two samples each of 5 grams were taken and the remaining charas and samples were sealed with seal ‘K’. As per the testimony of PW-3 documents of the scooter were taken in possession along with the scooter. As per the testimony of PW-3, made in his cross examination, Head Constable Rajinder Kumar asked the accused to show the documents, but the accused was reluctant in showing the documents, thereafter Head Constable Rajinder Kumar got the dicky of the scooter opened through the accused. 5 PW-3 has subsequently stated that he brought weighing scales from the shop of Inder Lala, out of which one weight was 500 grams, second 200 grams, third 100 grams and fourth 50 grams. As per testimony of PW-3, he remained on the spot throughout the proceedings of the case and it took about two and half hour to complete the entire proceedings. Thereafter PW-3 and other witnesses went to the police station. PW-4 ASI Bhim Singh, at the relevant time was officiating as S.H.O of Police Station Barmana, had received rukka Ex.PJ through constable Mohinder Singh, on the basis of which FIR Ex.PL was registered. PW-4 received three parcels bearing seal impression ‘K’ from Head Constable Rajinder Singh and the same were resealed with seal ‘SHO’ Ex.PK. An entry was made in register No. 19 of Malkhana regarding those parcels. PW-5 Head Constable Karan Singh recorded FIR Ex.PL in the presence of ASI Bhim Singh. Three sealed parcels deposited by ASI Bhim Singh were re-sealed with the seal of SHO and were kept in malkhana by PW-5. On 8.1.2001, one sample along with docket was sent to Chemical Examiner Kandaghat through constable Teg Singh vide RC No. 78/2001 and after delivery thereof, receipt was handed over to PW-5. PW-6 Head Constable Teg Singh has stated that he carried sample to Chemical Examiner Kandaghat vide RC No. 78/2001, which was sealed with seal of ‘SHO’. PW-7 Constable Bhag Singh had 6 carried copy of FIR and special report to the court and Superintendent of Police, Bilaspur and special report was delivered to the Reader to S.P. Bilaspur. PW-8 Head Constable Rattan Singh had brought the special report, which was received by the Addl. Superintendent of Police. 8. PW-9 Head Constable Rajender Kumar had stated that on 6.1.2001, at about 4.30 PM, a scooter driven by Kirpa Ram was stopped and papers were demanded, whereas the accused-respondent was making excuses in showing the documents. Thereafter, PW-9 got dicky of the scooter opened from the accused in the presence of the witnesses and from the dickey one money purse of brown colour was taken out from which charas was recovered. PW-9 deputed Head Constable Shamsher Singh to bring weighing scales and weights from the nearby shop and on weighing the charas was found 350 grams. Two samples each of 5 grms were taken separately and remaining charas and samples were put in separate cloth parcels and sealed with seal ‘K’. As per the testimony of PW-9 NCBI Form was filled in by ASI/SHO, which is Ext.PP. PW-9 has further stated that when the accused was reluctant in showing the documents, PW-9 suspected that he was carrying some contraband goods in the dicky of the scooter. 9. On analysis of the prosecution witnesses and materials on record, we noticed that in view of the testimony of 7 PW-3, the dicky of the scooter of the accused was got opened by him, whereas in view of testimony of PW-2, it was PW-9 who got opened dicky of the scooter. Nothing is emanating from the prosecution evidence to show that NCB Forms were filled in on the spot on 6.1.2001 at NH-21 Beri, the FIR is mentioned by the same ink in continuity at Form Ex.PP. There is also no mention in the NCBI Form about facsimile. As such Ex.PP creates doubt. 10. In view of the testimony of PW-3, the documents of the scooter were taken in possession on the spot and whereas nothing is emanating from the testimony of PW-9 as to what documents pertaining to the scooter were taken into possession. Two independent witnesses associated by the police had turned hostile as they have not supported the prosecution case. Memo Ex.PA also does not co-relate the recovery of contraband goods and the documents pertaining to the scooter. Ex.PA also revealed that before making alleged recovery of contraband goods, Head Constables Rajinder Kumar and Shamsher Singh and Constable Mohinder Singh (not examined) had not given their personal search to the accused in the presence of the witnesses. The conduct of Head Constable Sharmsher Singh and Constable Mohinder Singh (not examined) appears that as if they were having prior information. If the aforesaid police officials were aware that the accused- 8 respondent was in possession of contraband goods, and that the accused was definitely in possession of contraband goods, in such condition compliance of Section 42(2) of the NDPS Act, could have been made. Nothing is emanating from the prosecution witnesses that how the contraband goods/case property was kept in malkhana and how the recovered contraband goods were re-sealed when sent for chemical examination, as no facsimile is present on Ex.PP. Doubt is created about the manner of recovery of contraband goods, moreso, the recovery has not been supported by any independent witness. The testimonies of police officials are not in consistent and as such have also not been made reliable by the learned Sessions Judge. 11. On analysis of materials on record and prosecution witnesses, we do find that the learned Sessions Judge has rightly arrived at the finding that the prosecution has not been able to bring home guilt to the accused. In our considered view also the prosecution has miserably failed to prove its case beyond reasonable doubt. Consequently, the appeal is dismissed being devoid of any merit. (R.B. Misra) Judge. (V.K. Sharma) Judge. June 13, 2011 (Lsp)