IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.471 of 1996. Decided on: August,6 2010. State of H.P. …Appellant. VERSUS Puran Chand ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K.Sharma, Judge. Whether approved for reporting?1 For the Appellant: Mr. Anil Jaswal, Dy.A.G. For respondent: Mr. Vishal Bindra, Advocate. V.K. Sharma, J (Oral) The State is in appeal against the judgment dated 2.9.1995 of the learned Sessions Judge, Mandi, Kullu and Lahaul-Spiti Districts at Mandi, H.P, whereby the respondent, who shall here- in-after be called as ‘the accused’, was tried for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1995 ( the ‘Act’) and was ultimately acquitted. 2. Briefly stated, the case of the prosecution is that on 13th April, 1994, at about 4.00 PM, PW-14 Moti Ram, ASI along with other police Whether the reporters of the local papers maybe allowed to see the judgment? 2 officials was on patrol duty in Pandoh bazar. In the meantime, he received a secret information that a young man was coming to Pandoh bazar through Jiuni road, who was carrying ‘Charas’ in a bag. At about 4.25 PM, the accused appeared on the aforesaid place and was about to reach National Highway No.21, Pandoh bazar. On seeing the police party, he started retracing his steps towards Kullu side. However, he was stopped by ASI Moti Ram, who disclosed his intention to search him. Thereafter he gave him an option to be searched by him or to be taken to the nearest Gazetted officer/Illaqua Magistrate. The accused volunteered for his search by the said ASI as per memo Ex PF. Search followed. It was conducted by ASI Moti Ram in the presence of other members of the police party and independent witnesses Jeet Ram and Beli Ram. It resulted in recovery of ‘Charas’ weighing 1 Kg and 850 grams from the bag, being carried by the accused. Out of the recovered ‘Charas’, two samples, each weighing 10 grams were taken out. The samples and the bulk were sealed in three separate parcels with seal bearing impression ‘T’. The recovery memo is Ex PG. Seal impression Ex P-12 was also prepared. One sample of the recovered contraband was sent for chemical examination to C.T.L. Kandaghat and report Ex PK was received. On completion of investigation, the accused was sent up 3 to face trial. On being charged, he did not plead guilty and claimed to be tried. The prosecution evidence followed. It has examined as many as 14 witnesses. 3. On close of prosecution evidence, the accused was examined under Section 313 Cr.P.C., wherein he set up defence of denial simplicitor, innocence and false implication. 4. On conclusion of the trial, the accused was acquitted by the learned trial court, as already noticed. Being aggrieved, the State is in appeal. 5. We have heard the learned Deputy Advocate General for the appellant-State and the learned counsel for the respondent-accused and perused the records. 6. The learned trial court has proceeded to acquit the accused, primarily on the grounds that the evidence led by the prosecution suffers from serious infirmities and embellishments and apart from that there is no credible link evidence to connect the sample analyzed vide report Ex PK with the contraband, allegedly recovered from the accused. 7. Though this was a case of prior information, yet since the alleged recovery was made from an open place, section 42 of the Act was 4 not applicable. Furthermore, it was not a personal search and instead the contraband was allegedly being carried by the accused in a bag, which was searched. It being so, section 50 of the Act would also not apply. Insofar as non compliance of the provisions of section 57 of the Act, which in the facts and circumstances of the present case has been found to be doubtful by the learned trial judge is concerned, it is settled that this provision of the Act is directly in nature and unless its non compliance is found to have caused prejudice to the accused, non observance thereof, would not be of any material consequence. 8. Admittedly, PW-14 ASI, Moti Ram, had received prior information about coming of the accused towards Pandoh bazar through Jiuni road on 13.4.1994 at about 4.00 PM. Thus, it could have been reasonably expected that he could have made efforts to join independent witnesses of the locality, to be associated with the impending search and seizure, if any. However, it was not done and instead two persons, namely, PW-13 Jeet Ram and one Beli Ram (not examined ), who at best can be said to be only chance witnesses, are said to have been joined during the proceedings. It shall be pertinent to observe that one of the independent witnesses, Sh. Beli Ram, who was not examined, having been given 5 up, was a meat seller in Pandoh and the other, PW-13 Jeet Ram belongs to another place, namely, village Tundhla, illaqua Shiva Badar, District Mandi. Inso far as PW-13 Jeet Ram is concerned, though he has supported the version of the prosecution, yet there are material contradictions between his testimony and that of other official witnesses examined on behalf of the prosecution. To this aspect of the matter, I shall advert a little later. 9. Even the genesis of the prosecution case does not appear to have been put up before the court in its true perspective. According to the version stated by the official police witnesses, the secret information was to the effect that the accused was coming towards Pandoh bazar through Jiuni road. Their further case is that he was nabbed while so coming towards Pandoh bazar through Jiuni road some time after receipt of the prior secret information. However, when the testimony of PW-13 Jeet Ram is taken into consideration, it transpires that according to him he was sitting at the shop of a vegetable seller in Pandoh bazar at the relevant time. At that time, accused also came there and sat on a bench outside the vegetable shop. After some time, police also came there. It was thereafter that the alleged search and seizure had taken place. Thus, these two versions are in stark contradiction to each 6 other and cannot be easily reconciled. Thus, the presence of police party and PW-13 Jeet Ram on the spot scene at the same time becomes highly suspect as according to the two sets of witnesses two places of occurrence emerge, i.e one on the National Highway No.21, Pandoh bazar, where the Jiuni road converges with the National Highway and the other in Pandoh bazar, outside the shop of a vegetable vendor. Still further, PW-10 Constable Raj Kumar has stated that when the police party was on patrol duty in Pandoh bazar, the accused was found roaming about in the market and it was there that his search was conducted, which resulted in the seizure of the alleged contraband from him. This is the third version about the alleged place of occurrence. 10. As we have already observed that PW-13 Jeet Ram and the other independent witness Sh.Beli Ram who was given up, can only be characterized as chance witnesses. Their very presence on the spot scene at the alleged time of occurrence is otherwise doubtful for the reasons, as already stated here in above. 11. Above all, the sample of ‘Charas’ analyzed vide CTL report Ex PK is not convincingly connected with the bulk of the ‘Charas’ allegedly recovered from the possession of the accused. As per prosecution, the case property which was initially sealed with seal bearing impression ‘T’ was resealed 7 by PW-12 Inspector Ravinder Singh with his own seal bearing impression ‘D’. However, from the bare perusal of CTL report Ex PK, it is revealed that the sample analyzed thereunder was bearing three seals having impression ‘T’. There is no mention in the report about presence of any impression of seal ‘D’ with which the case property is said to have been resealed by PW-12 Inspector Ravinder Singh. 12. However, when the statements of PW-12, Inspector Ravinder Singh and PW-14 ASI Moti Ram are taken into consideration in conjunction with each other, the very resealing of the case property is rendered highly suspect. As per recovery memo Ex PG as well as according to PW-14 ASI Moti Ram, the bulk of ‘Charas’ and the two samples drawn out of the same were sealed in three separate parcels. Thereafter, he had “produced the sealed sample parcel and sealed sample containing case property before’ SHO, P.S. Sadar (PW-12 Inspector Ravinder Singh), who in the meantime had come there in connection with an inquest in a death case.” 13. However, PW-12 Inspector Ravinder Singh has stated that “ when I reached at P.P. Pandoh, ASI Moti Ram produced a bag, then stated that a pullandah of ‘Charas’ which was sealed with 10 seals bearing impression ‘T’. I made that sealed pullandah into another pullandah and sealed it with seal ‘D’. Thus, 8 it will be seen that both the witnesses have materially contracted each other on this aspect of the matter connected with resealing of the case property. 14. Furthermore, though PW-14 ASI Moti Ram has stated at the end of his chief examination that sample seal impressions were also prepared, yet he has not stated anything about depositing of such sample seal impressions with PW-7 MC Shanti Kumar. 15. According to PW-12 Inspector Ravinder Singh, he had resealed the case property i.e. two samples and the bulk with his own seal bearing impression ‘D’, but he has not stated anything about the preparation of any sample seal impression thereof or depositing the same with any one. 16. Similarly, PW-7 C. Shanti Kumar, the then Moharar Constable, PP Pandoh has also not stated anything about depositing of sample seal impressions of seal ‘T’ and seal ‘D’ with him or about sending the same to CTL Kandaghat for comparison. Strangely enough, PW-9 C. Parma Nand has stated that on 14.4.1995 MC Shanti Kumar (PW-7) of PP Pandoh had handed over to him two small sealed parcels sealed with seal ‘T’ and another bigger parcel sealed with seal ‘D’ for being handed over to MHC, PS, Sadar. He has also not stated anything about handing over of any sample seal impression to him. The testimony of 9 this witness contradicts the statement of PW-12 Inspector Ravinder Singh, who has stated that only one parcel was handed over to him by ASI, Moti Ram which was sealed with seal ‘T’ and in turn he had resealed the same with seal ‘D’. 17. PW-1 HC Hukam Singh, who at the relevant time was posted as Addl. MHC, PS, Sadar Mandi has an altogether different version to state. According to him, on 14.4.1995 C. Parma Nand (PW-9) had handed over two sealed parcels, one containing sample of ‘Charas’ sealed with seal ‘T’ and the other containing ‘Charas’ sealed with seal ‘D’, to him. He has also not stated anything about depositing of any sample seal impression with him. According to him, on 24.4.1995, one of the samples was sent by him to the laboratory at Kandaghat through PW-3 Constable Dev Ram, but without stating anything that whether any seal impression was also sent along with the sample to the laboratory or not. Similarly, PW-3 Constable Dev Ram has also not deposed anything about taking of any seal impression to the laboratory along with the sample sent for analysis through him. 17. For the foregoing reasons, we are satisfied that it shall not be safe to upset the judgment of acquittal rendered by the learned trial court vide impugned judgment dated 2.9.1995. In this conclusion of ours, we find support from the law laid down in 10 the authorities reported as: State of Rajasthan Vs. Gopal, 1998 (8) SCC 449; Roshan Lal Vs. State of H.P., 2004 Latest HLJ H.P.968; Mahant Bal Giri and another Vs. State of H.P., 2008 (1) SLC 455; Satish Kumar Vs. State of H.P. 2008 (1) Shim. L.C. 524 and Vineh Kumar Kamlesh Kumari Vs. State of H.P., 2008 (3) SLC 364. 19. The above observations brings us to hold that the prosecution was not able to substantiate its case against the accused beyond reasonable doubt and it being so, the impugned judgment of acquittal dated 2.9.1995 does not call for any interference by this Court. The appeal is accordingly dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. August 06, 2010. (sl) 11