HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No.: 74 of 1995 Decided on: 14.11.2008 State of Himachal Pradesh ………Appellant. Versus Fateh Singh ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For appellant: Mr.Rajesh Mandhotra, Deputy Advocate General. For respondent: Mr.N.D. Sharma, Advocate. Per V.K. Ahuja, J: This is an appeal filed by State of H.P. under Section 378 of the Code of Criminal Procedure against the judgment of the court of learned Sessions Judge, Shimla, dated 7.3.1994, vide which the respondent was acquitted of the charge framed against him under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (here-in-after referred to as the NDPS Act). Briefly stated the facts of the case are that on 17.8.1993, at about 6.30 p.m., PW-10 Parmod Shukla, ASI, Police Station Sadar, Shimla, was present near Panchayat Bhawan, Shimla, alongwith two Head Constables and two Constables and they were going towards Bus Stand. They saw the respondent coming from Bus Stand, Shimla, who tried to slip away on seeing the police party and was ______________________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - overpowered on suspicion. It is also the prosecution case that an option was given to the respondent if he wanted to give his search before a Magistrate or a gazetted officer and the accused agreed to give his search to the police. A ruka was sent to the Additional Superintendent of Police, who came to the spot and on personal search of the person of the respondent, charas weighing 400 grams, wrapped in a polythene paper, was recovered from his possession. Two samples of 25 grams each were taken according to the procedure and recoveries were effected. On completion of the investigation, the challan was filed before the learned trial Court, who tried the respondent leading to his acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. The learned trial Court has taken various grounds to disbelieve the prosecution story. The first point to be considered is as to whether the prosecution has been able to prove the due compliance of mandatory provisions of Section 50 of the NDPS Act or not. PW-10 Parmod Shukla, ASI, has stated that he gave an option to the respondent if he wanted to give his search before a Magistrate or a gazetted officer, who agreed to give his search to him and a memo Ext.PW-1/B was prepared in this regard. PW-3 Budhi Singh, Constable, who was also a member of the patrolling party and was present with PW-10 ASI Parmod Shukla at the spot, has also stated that the accused was asked if he intends to be got searched before some gazetted officer or a Magistrate. However, a perusal of the consent memo Ext.PW-1/B shows that PW-3 Budhi Singh was not a witness to the consent memo since his signatures are not there on it. However, the prosecution has also examined two independent witnesses, namely, PW-1 Roshan Lal and PW-2 Ajay Kumar, who were the only witnesses to - 3 - the consent memo Ext.PW-1/B. Both these witnesses had clearly stated that in their presence nothing was asked from the respondent by the police nor the respondent signed in their presence. This admission was made by these witnesses in cross examination, but they were not declared as hostile by the learned Public Prosecutor for the State, meaning thereby that the version given by these witnesses was accepted as correct by the prosecution. Apart from the above, PW-10 Parmod Shukla has stated in cross examination that before the arrival of the Additional Superintendent of Police, he had obtained the consent of the accused and gave his search to the accused. The said Additional Superintendent of Police R.M. Sharma as PW-9 has clearly stated that the option was given by the ASI PW-10 Parmod Shukla in his presence in which the respondent was given an option if he wanted to give his search before a Magistrate or before the police party. This version is in contradiction to the statement of PW-10 Parmod Shukla, who has stated that the option was already given before he reached and he refers to the offer to be searched before the Magistrate or the police party and had not used the word ‘gazetted officer’ as required under Section 50 of the NDPS Act. From the above discussion, it follows that there is solitary statement of the Investigating Officer that he gave the option to the respondent as required under Section 50 of the Act, which does not find corroboration from any of the two independent witnesses examined in the case and contrary version has been given by PW-9 R.M. Sharma, Additional Superintendent of Police. Once there is a major contradiction in the testimony of the official witnesses and the independent witnesses, it cannot be said that there was compliance of mandatory provisions of Section 50 of the NDPS Act in its true letter and spirit. - 4 - Coming to the other grounds taken by the learned trial Court, it had been observed by it that the SHO Kuldeep Chand Sharma PW-7, admittedly, had not put his own seal when the case property was produced before him by ASI Parmod Shukla PW-10. The second infirmity pointed out is that the special report, as required under Section 57 of the NDPS Act, was not sent by the Investigating Officer to his immediate superior officer. Both these provisions have been held by the Apex Court to be directory and not mandatory, but once the police had not taken any care to comply with these provisions, which are directory in nature, the version of the prosecution becomes doubtful and keeping in view the other infirmities, these points cannot be ignored while appreciating the evidence led by the prosecution, particularly, when the case rests upon the testimony of the official witnesses and both the independent witnesses, when examined, have not fully supported the prosecution story. PW-1 Roshan Lal has stated that he was called by the police from his shop and the accused was already in the company of the police, meaning thereby that the respondent was not apprehended in presence of this witness. He only stated that except the recovery of charas, nothing was asked from the accused in his presence by the police nor any document was got signed from the accused. PW-2 Ajay Kumar has also stated that the accused was already standing with the police when the charas was recovered and he was only asked to sign the papers and he had not read the contents of the papers. He also stated that the accused never signed in his presence. Taking in view all these infirmities together, it cannot be said that the findings recorded by the learned trial Court that the prosecution has failed to prove their case beyond any reasonable doubt can be termed as perverse calling for an interference by this Court. - 5 - In view of the above discussion, we hold that there is no merit in the appeal filed by the State of H.P., which is dismissed accordingly. The bail bonds furnished by the respondent shall discharged. (Deepak Gupta), Judge. November 14, 2008. (V.K. Ahuja), (TILAK) Judge.