1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 516 of 2002 Decided on August 18, 2011 State of H.P. …Appellant. VERSUS Rajesh Kumar & anr ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Dev Darshan Sud, Judge Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Addl. AG with Mr. Rajinder Dogra, Addl. AG For the respondents: Mr. Vinod Thakur and Mr. Vinod Gupta, Advocates. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 16.5.2002 passed by learned Sessions Judge, Kullu, HP in Sessions Trial No. 95/2001, thereby acquitting the respondents / accused for the offence under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short called ‘NDPS Act’) 2. The prosecution case, in brief, is that ASI Kanwar Singh (PW-11), accompanied by LHC Tara Chand (PW-8), Constable Chand Parkash (PW-2) and constable Krishan Lal (PW-1), while investigating the case, received information that two young boys wearing suits, Whether the reporters of the local papers maybe allowed to see the judgment? 2 traveling on bus bearing No. HP-33-6075 were carrying ‘Charas’. Such information was reduced in writing and sent through PW1 Krishan Lal constable to the S.P. Office, Kullu. S.P. Kullu endorsed the same and handed over to PW-3 Alam Gir. Police party reached Bajaura Check post at 11.35 AM, stopped the bus and two boys were noticed sitting in the back seat. Both were taken out of the bus and on obtaining their consent as to whether they want to be searched by a Gazetted Officer or Magistrate, both of them consented to be searched by the police. On obtaining their consent, personal search was made. Accused/respondent/Rajesh Kumar, was found having concealed a polythene packet under his pant towards back side, which was containing ‘Charas’ in the shape of sticks. The ‘Charas was weighed and found 750 grams, out of which 25 grams each were separated. Samples were packed and sealed and balance 700 grams ‘Charas’ was also sealed in separate packet. All the packets were affixed six seal impression of seal ‘H’. Search of another accused/respondent Amit Kumar was conducted and from the front portion under his belt a polythene packet containing ‘Charas’ was taken out from which ‘Charas’ of 750 grams was recovered. Two samples of 25 grams each were taken and sealed with the same seal by affixing six seal impression ‘H’. ‘NCB Form’ in triplicate was filled up Sample was sent for Chemical examiner. The case property was deposited with MHC Bhagat Ram, who made entry Ex PW-4/A in, Malkhana register. Two sealed packets were sent to CTL, Kandaghat through constable Amar Singh. Keeping in view the chemical examiner report and investigation, respondents were charged for the aforesaid offences. 3 3. In order to prove its case, prosecution has examined as many as eleven prosecution witnesses, whereas, through their statements under Section 313 Cr.P.C, accused/ respondents denied the prosecution case. 4. Two independent witnesses (PW-6), Jagu Ram and (PW-7) Bhupinder Sharma, forest officials, since have not supported the case to the expectation of the prosecution, as such, they were declared hostile. (PW-10) Devinder Kumar, the conductor of the bus in question, stated that two persons were taken out from the bus by the police and thereafter bus was permitted to go towards Mandi side and he went with the bus to Mandi. PW-10, however, denied recovery of ‘Charas’ in cross-examination. Constable Tara Chand/(PW-8) and ASI Kanwar Singh/(PW-11) have spoken about the recovery of ‘Charas’. PW-11/ASI Kanwar Singh, the Investigating Officer, in his endeavour to support the prosecution case has reiterated the prosecution version. In his statement, PW-11 did not divulge that from which place/ shop the weights and measurement were arranged and which particular seal was put on the samples. Nothing is known as to where the sample was deposited in Malkhana, where ‘NCB Form’ Ex PW-11/A was filled up, whether resealing was made on the two samples sealed with seal ‘H’, who took out samples to CTL, Kandaghat. In the absence of proper facsimile seal on ‘NCB Form’, it is difficult to know that which sample was recovered and sealed on the fateful day. After receiving of chemical examination report, it is also 4 difficult to know whether the report was pertaining to the same contraband good which was recovered and sealed on the said date. 5. The packets are said to be sealed with seal ‘H’ having six seal impression of seal ‘H’. Seal impression ‘H’ on the samples and case property was put by ASI Kanwar Singh/(PW-11). Thereafter when the case property was taken to the police station, it was produced before SI/SHO Kaur Singh (PW-5), who sealed the case property and samples with his own seals, bearing seal impression ‘X’ and also affixed seal impression on ‘NCB Form’. However, nothing has been divulged about the place where the case property was kept in Malkhana or elsewhere. If the said property was sealed with seal impression ‘H’ and ‘X’ and the same was deposited by SI Kaur Singh to MHC Bhagat Ram/(PW-4) and if the samples were sent to CTL, Kandaghat, but no where seal impression was put on the sample and the case property. PW-9 who took the samples to CTL, Kandaghat has stated that sample was sealed with seal ‘X’ & ‘H’. But as stated earlier ‘NCB Form’ Ex PW-11/A was prepared on the spot. This shows that the samples were only sealed with seal H and not with seal X. Though SHO affixed his seal impression ‘X’ on ‘NCB Form’, but a doubt is created that seal impression ‘X’ was put on ‘NCB Form’ by SI Kaur Singh. Had he actually resealed the case property with seal X and then deposited in malkhana, then seal ‘X’ could have been reflected on ‘NBC Form’. A doubt is, therefore, created that whether NCB form is filled up on the spot or at some where else. No proper description has been given about the putting of seal on NCB form. Independent witnesses have not supported the prosecution case. Doubt is also created about the recovery and 5 sending of case property to CTL, Kandaghat and as to whether police raiding party was carrying weights and measures along with them or the same were procured from nearby area. 6. Besides above mentioned anomalies, legal formality of Section 50 of NDPS Act has not been complied with. Ex PW-6/A, in our considered view, is the only consent of the accused persons indicating that the accused wanted to be searched by the police party and not by the Magistrate or the Gazetted Officer. However, prior to making of search, specifically or exclusively no offer was made to the accused persons that they have the legal right of being searched by the Gazetted Officer or Magistrate. As such, the mandatory requirement of Section 50 of ‘NDPC Act’ is not fulfilled, therefore, on this count alone, the prosecution case is vitiated. 7. In our considered view, the prosecution has not only miserably failed to prove its case beyond reasonable doubt, but has failed to bring home guilt to the accused. We find no scope for interference in the impugned judgment of the trial court. The criminal appeal, being devoid of merit, is accordingly dismissed. 8. Bail bonds, furnished by the accused/ respondents, are hereby discharged. ( R.B.Misra ), J. 18th August, 2011 (Dev Darshan Sud), J. (sl)