1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 535/1999 Decided on September 9, 2010 State of H.P. …Appellant. VERSUS Mahesh 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.AG and Mr. J.S.Rana, Assistant Advocate General. For the respondent: Ms. Sweta Julka, Advocate. 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 19.8.1999 passed by learned Special Judge, Solan, HP, in Case No. 8-S/7 of 1999, thereby acquitting the respondent / accused for the offence under Section 20 of Narcotic Drugs and Psychotropic Substances Act, in reference to case FIR No. 46/99. 2. The prosecution case is that police party apprehended the accused/respondent when he was standing outside post office and after seeing the police officials, started running. Therefore, on suspicion, he was apprehended and on personal search, 350 grams of Whether the reporters of the local papers maybe allowed to see the judgment? 2 ‘Charas’ was recovered from the accused/respondent which was concealed below his belt inside his shirt and sweater. Two samples were taken and the remaining ‘Charas” was sealed separately. Samples were sent for chemical examination. On investigation, the accused/respondent was charged for the aforesaid offence and the case was committed to session trial. 3. In order to prove its case, prosecution has examined as many as 10 prosecution witnesses, whereas through his statement under Section 313 Cr.P.C, accused/respondent denied the prosecution case. 4. The prosecution has examined PW-1, Chander, independent witness, PW-2 Constable Hardev Singh, PW-3 Constable Rajender Singh, PW-4 HC Rajesh Kumar, PW-5 HC Yogender Singh, PW-6 D.D. Sharma, Inspector/SHO, PS, Solan, PW-7 ASI Prithvi Raj, PS, Solan, PW-8 Brahma Nand, an independent witness, PW-9 Varinder Kumar, ASI, PP Saproon and PW-10 Vijay Kumar, HC, Police Line, Solan. 5. On security of the prosecution witnesses and materials on record, we notice that Chander (PW-1), independent witness, has stated that he has put signature on the papers which were already written and have not gone through the contents of the documents before putting signature. PW-1 has also stated that the ‘Charas’ was not weighed by him as he had given only scale and he was not aware about Brahma Nand (PW-8) another independent witness. As such we find that PW-1 has not supported the prosecution case and has not witnessed the search or recovery of contraband goods. Another prosecution witness Brahma Nand (PW-8) has stated that while he 3 was posted as Superintendent, Post Office, he was called by the police at 7.30 PM, however, no search or recovery was made in his presence. He was only apprised by the police that the ‘Charas’ was recovered from the accused/respondent and at the instance of police officials, he had put the signatures without going through the contents of the documents. 6. PW-8, Brahma Nand, an independent witness has, however, not indicated about the presence of another independent witness, namely, Chander PW-1. In the circumstances, it appears that both the independent witnesses were not present on the spot and for the purpose of showing association in search and recovery, they were named. The most material aspect which we notice is that the police officials, before making search, have neither apprized the respondent/accused that whether he is agreeing for personal search by police officials or by Magistrate of by Gazetted officer. So much so, the accused/respondent was not apprized that he has a right to be searched. As such, the mandatory requirement of Section 50 of NDPC is not complied with. 7. In the facts and circumstances, the two independent witnesses said to have been associated by the raiding party, have not supported the prosecution case at all and the mandatory requirement of Section 50 of NDPS Act has also not been complied with. In view of the testimony of PW-2, PW-8 Brahma Nand, an independent witness was standing there and another witness PW-1 was called later on. There are apparent contradictions in the testimonies of PW-1, PW-10 and PW-9 regarding completion of the entire proceedings. 4 8. In view of such inconsistencies and contradictions, the prosecution case cannot be reliable. in our considered view, the prosecution cannot be said to have been proved its case beyond reasonable doubt. Therefore, we find no scope for interference in the impugned judgment of the trial court. The criminal appeal, being devoid of merit, is accordingly dismissed. 9. The bail bonds, furnished by the accused/respondent, are discharged. ( R.B.Misra ), J. 9th September, 2010 ( V.K.Sharma ), J. (sl) 5