IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 303 of 1997 Decided on: 26.8.2010 State of H.P. ..…Appellant Versus Ram Kumar. ..…Respondent Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. A.G. For the respondent : Mr. Vineet Vashistha, Advocate, vice Mr. Bimal Gupta, Advocate. R.B. Misra,J. (Oral) The present criminal appeal has come-up for consideration after leave to appeal under Section 378(3) of the Code of Criminal Procedure has been granted, in reference to the impugned judgment dated 25.2.1997, passed by learned Sessions Judge, Sirmaur District at Nahan, H.P. in Sessions Trial No. 39-N/7 of 1996, whereby accused-respondent has been acquitted for the offence, under Section 15 of the ND&PS Act, in reference to FIR No. 22/1995, dated 18.11995. 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 2. The prosecution case is that on 18.1.1995 bus No. HP-18-3501 coming from Ambala Cantt met an accident with a Van. Consequently, traffic on the road was jammed, on this information the police Head Constable Mohinder Singh along with other Constable and Shri Raj Kumar, the Chief Inspector and Conductor of the HRTC Prem Chand came to the spot. In the meantime, Inspector Rajesh Dharmani, the SHO/Inspector of Police Station also came there and traffic on the road was regularized. However, at about 7.00 P.M. when the police party was carrying out the investigation about the said accident, respondent-accused came there on a scooter No. HR-01-3414 and when he reached near the accidental bus, he could not control the scooter and fell down. A bag kept by him on the foot-mat of the scooter also fell down and some plastic envelopes came out of that bag. As such, police Inspector Rajesh Dharmani and others present there were attracted towards the scooter of the respondent-accused and it was found that the bag contained ten small polythene envelopes with poppy straw. Arranging for weighing one Kg. of Poppy straw was deducted and after taking samples of 100 grams from each of the envelopes, the samples and the remaining contraband goods were packed and sealed in separate packets and taken into possession in presence of the witnesses. Accused was arrested and was charged for the offence punishable under Section 15 of the ND&PS Act and the case was committed to Sessions Court. 3. In order to prove its case, the prosecution examined as many as nine witnesses, whereas the accused through his 3 statement under Section 313 Cr.P.C. denied the prosecution case. 4. Out of the nine witnesses, the prosecution examined only Shri Raj Kumar (PW-1), Prem Chand (PW-4) H.C. Mohinder Singh (PW-2) and Inspector Rajesh Dharmani (PW-3) who are the witnesses to the recovery of the incriminating material from the accused-respondent. The other witnesses S.I. Chatter Singh (PW-5) had recorded the FIR Ext.PC/1 on the Rukka Ext.PC sent by Inspector Rajesh Dharmani. He had also allegedly resealed the packets with seal ‘T’ and then handed over the case property to MHC Kundan Singh. Head Constable Amarjit Singh (PW-6) has proved the signatures of the Addl. S.P., Nahan on the special report Ext.PJ on 18.1.1995 at 11.55 P.M. PW-7 Constable Sita Ram and PW-8 Constable Bakhtawar had taken samples of the incriminating material to the Chemical Examiner, Kandaghat and Bharari, respectively. Similarly, H.C. Kundan Singh (PW-9) had kept the case property with him at Police Station, Nahan and handed it over to the Constable Sita Ram and Constable Bakhtawar Singh, respectively for their carrying to the Chemical Examiners. They have placed on record their respective affidavits Exts.PL, PM and PN and thus are formal witnesses. 5. From the analysis of the prosecution witnesses and the material on record, we notice that PWs-1,2,3 and 4 appears to have supported the prosecution case. However, on scrutiny of their testimony material contradictions are appearing. In the site-plan Ext.PG, the scooter of the accused was shown just in front of the accidental bus, whereas Inspector Rajesh Dharmani 4 (PW-3) has stated that the scooter was at a distance of 5 to 7 metres from the bus in question. Prem Chand (PW-4), Conductor of the bus has stated that scooter had fallen on the road at a distance of about 12 feet after crossing the accidental bus. In view of statement of PW-4 the scooter was at the back side of the bus that too at the distance of 12 feet. Undisputedly, the occurrence took place at about 7.00 P.M. whereas it was the month of January, 1995 and in view of the testimony of PW-1 Raj Kumar on that day the sun had set at 4.45 P.M. and it was pitch dark at 7.00 P.M. and, therefore, it remains a mystery that any witnesses who have seen falling of the bag from the scooter of the accused-respondent if it had fallen 12 feet away from the back side of the accidental bus. The investigation in the case was said to be completed between 11.00 to 11.30 P.M. in view of the testimony of PWs-3 and 4 but PW-1 Raj Kumar and PW-2 Mohinder Singh have stated that it had completed at about 7.45 or 8.30 P.M. There being a gap of 3 to 4 hours in completion of the investigation as stated by the witnesses, the possibility cannot be ruled out if the witnesses were actually at the spot or not. 6. Contradictions indicate that the envelopes were actually weighed on the spot. PW-1 Raj Kumar has stated that weighing of envelopes were made by bringing weights and scale by Sahabudeen Constable but Mohinder Singh H.C. contradicted it by saying that it was Matloob Ahmad who brought these articles for weighing. Rajesh Dharmani (PW-3) has very categorically stated that Matloob Ahmad never brought the cloth envelopes but he had only brought the scale and the 5 weights. As such, all the three witnesses differ on this point which does not ruled out the possibility if actually these articles were called for or not that too from Constable Sahabudeen or from Constable Matloob Ahmad. Such contradictions if looked in view of the statement of accused-respondent under Section 313 Cr.P.C. that he had never been carrying the contraband goods and he was not having any driving licence to drive the scooter and he has been falsely implicated. Such situation also creates doubt in view of the prevailing contradictions on the testimony of prosecution witnesses. 7. PWs-1,2,3 and 4 have stated that after the contraband goods were seized vide recovery memo Ext.PB, the goods thereof were supplied to the accused-respondent. However, PW-3 has admitted in so many words that at the time of the arrest of the accused-respondent, he had taken his personal search and also prepared the arrest memo Ext.C-1 showing the articles recovered from the personal search of the accused-respondent. But strangely enough the copies of Exts.PA and PB allegedly supplied to the accused-respondent earlier have not been shown as recovered from the accused- respondent. As such, the possibility cannot be ruled out if the copies of the recovery memos Exts.PA and PB were not supplied to the accused-respondent as alleged. Though the non-supply of the copies of the seizure memo automatically does not makes the prosecution case false but the false explanation given to that effect coupled with the probability of the defence of the accused- respondent indicate that the prosecution case ought to be examined very carefully and cautiously. PWs-1,,2,3 and 4 have 6 stated that samples and the remaining contraband goods were sealed with seal ‘H’ and seal after use was given to Constable Raj Kumar (PW-1) but Raj Kumar has not produced the said seal in the Court. Similarly, SI Chatter Singh (PW-5) stated that on production of the case property, he resealed them in the police station with seal ‘T’ but he had not given the seal after use to any person. SI Chatter Singh has also not mentioned anywhere that if he had resealed the sample and case property with seal ‘T’. Under these circumstances, a doubt is created that the case property having been resealed and the seal ‘H’ has not been produced in the Court. 8. On the scrutiny of material on record, prosecution witnesses and material contradictions learned Sessions Judge rightly arriving at the finding that the prosecution failed to prove its case beyond reasonable doubt. In our considered view, prosecution has failed to bring home the guilt of the accused- respondent. There is no scope of any interference with the judgment of the acquittal. Accordingly, the appeal being devoid of any merit is, therefore, dismissed. 9. Bail bonds, furnished by the accused-respondent, are hereby discharged. (R.B. Misra), Judge. August 26, 2010 (V.K. Sharma), Judge. (vs)