IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.337 of 2006 Decided on : October 22, 2009 Satnarayan …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. M.S. Guleria, Advocate. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J (Oral) Appellant Satnarayan has appealed against the judgment, dated 19th July, 2006, whereby he has been convicted of offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of two years. 2. Prosecution’s case may be stated thus. On 7th January, 2005, a Police Party, comprising ASI Trilok Singh, HC Palam Singh (PW-6), HC Jagdish Chand (PW-10), Constable Vijay Kumar (PW-7) and four-five other Constables, left Police Station Tissa, for routine traffic Whether reporters of the local papers may be allowed to see the judgment? …2… checking and patrolling. When party reached at a place called Kalhel, around 7.40 a.m., a bus of Himachal Road Transport Corporation (HRTC), No.HP-48-0919, headed for Chamba, came from Bhanjraru side. It was got stopped. Two Police Parties, one headed by ASI Trilok Chand and the other headed by PW-6 HC Palam Singh, entered the bus. Party headed by PW-6 HC Palam Singh entered through the back window. Appellant was found sitting on Seat No.37 in that bus. He had a polythene bag, which was placed on his legs. On search, it was found to contain two small sized bags and those bags contained Charas, which weighed 2 kg. Bag of the appellant was searched in the presence of PW-1 Sant Singh, a Dhaba owner at Kalhel, and PW-2 Balbir Singh, Inspector of HRTC. From the recovered Charas, two samples, each weighing 20 grams, were separated. Samples and the bulk Charas were made into separate parcels and were sealed with a seal that produced impression of letter ‘T’ of English alphabet. Case property was produced to PW-11 Hem Singh, SHO, Police Station Tissa, who affixed his own seal that produced the impression of letter ‘S’ of English alphabet. Case property was kept in the Malkhana by PW-6 HC Palam Singh himself, because he was officiating as MHC also, during those days. One of the two samples was sent to the Chemical Examiner, who, vide report Ex. PW-10/D, opined that it contained 30.07 per cent resin of cannabis plant. …3… 3. Appellant was charged by the trial Court with offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. He pleaded not guilty and was, therefore, tried for the said offence. 4. Prosecution examined PW-1 Sant Singh and PW-2 Balbir Singh, the alleged two independent witnesses. Both of them turned hostile. Other witnesses of search and seizure, examined by the prosecution, were PW-6 HC Palam Singh, PW-7 Constable Ajay Kumar and PW-10 HC Jagdish Chand. They all stated that the appellant was occupying Seat No.37 in the bus and he had a plastic bag in his lap and in that plastic bag there were two other small sized bags, which contained Charas. Appellant took the plea that the bus was stopped at Kalhel, in front of tea shops and he alongwith other passengers alighted from the bus to take tea and when he was taking tea at the Dhaba of PW-1 Sant Singh, police people came with a bag containing Charas and told that the Charas belonged to him. 5. Trial Court did not believe the defence plea. It believed the testimony of PW-6 HC Palam Singh, PW-7 Constable Ajay Kumar and PW-10 HC Jagdish Chand and convicted and sentenced the appellant, as aforesaid. 6. We have been taken through the evidence by the learned counsel for the appellant. Submissions made by the learned counsel for the appellant as also the learned Assistant Advocate General have also been considered. …4… 7. Appellant’s plea that he was taking tea, when the police came with a bag, saying that it belonged to him, is supported by PW-1 Sant Singh as also PW-2 Balbir Singh. PW-1 Sant Singh stated that the appellant was taking tea at his Dhaba, when the police came with a bag and proclaimed that it belonged to the appellant. PW-6 HC Palam Singh and PW-7 Constable Ajay Kumar denied the suggestion thrown to them, in the cross-examination, that PW-1 Sant Singh had a tea shop/Dhaba at Kalhel. They also denied the suggestion that the bus was stationary at Kalhel and passengers were taking tea and breakfast, when the Police Party reached there. PW-10 HC Jagdish Chand, however, admitted that PW-1 Sant Singh had a Dhaba at Kalhel. He also admitted that checking of the bus was done in front of the Dhabas at Kalhel. 8. PW-6 HC Palam Singh and PW-7 Constable Ajay Kumar stated that PW-1 Sant Singh had a grocery shop and not a tea-stall or Dhaba at Kalhel. PW-6 HC Palam Singh stated that the bus was not checked near the Dhabas but at a distance of 100 metres from village Kalhel. PW-7 Constable Ajay Kumar also stated that the bus was got stopped 50 metres away from the bazaar of village Kalhel. Statements of these two witnesses, with respect to these two facts, are falsified by PW-10 HC Jagdish Chand, as indicated hereinabove. Site plan relied upon by the prosecution, which is Ex.PW-10/A, also falsifies the …5… statements of these two witnesses, because as per the site plan, the bus is shown in front of Dhabas of village Kalhel and one of the three Dhabas shown in the site plan, is recorded to belong to PW-1 Sant Singh. 9. Denial of true facts that PW-1 Sant Singh owns a Dhaba, where tea and breakfast etc. is served and that the bus was checked in front of the Dhabas by PW-6 HC Palam Singh and PW-7 Constable Ajay Kumar itself is sufficient to doubt their testimony and incidentally the prosecution story. Also, the denial of these true facts by the abovenamed two witnesses corroborates the defence plea, which is supported by both the independent witnesses, namely PW-1 Sant Singh and PW-2 Balbir Singh. Both these witnesses stated that the bus had stopped at Kalhel and passengers were taking tea and breakfast, when the police people came with a bag containing Charas and proclaimed that it belonged to the appellant. 10. Abovestated position apart, it is also doubtful if the report of the Chemical Examiner Ex. PW-10/D pertains to the sample of the stuff allegedly recovered from the appellant. According to the prosecution, two samples, each weighing 20 grams, had been separated. Sample, which was sent to the Chemical Examiner, contained 30.8116 grams Charas. That means there was substantial increase in the weight of the sample Charas. Increase was to the order of 54 per cent, approximately. Such a huge variation …6… is not possible due to climatic reasons or the condition of the place, like dampness etc., where the samples might have been stored or on account of there being slight variation, while weighing the stuff or on account of some error in the weighing scale. 11. For the foregoing reasons, we are of the considered view that the case of the prosecution does not stand established, beyond reasonable doubt. Consequently, appeal is accepted, judgment of the trial Court, convicting and sentencing the appellant, is set aside and he is acquitted. He being in jail, serving out the sentence awarded by the trial Court, is ordered to be released forthwith, in case his detention is not required in any other case. Release warrant be prepared accordingly. Appeal stands disposed of. ( Surjit Singh ), J October 22, 2009(sd) ( Surinder Singh ), J