IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 721 of 2002 Date of Decision : August _12 , 2011 State of H.P. Appellant Versus Sudesh Kumar alias Toti Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. Vivek Thakur, Addl. Advocate General, for the appellant. For the respondent : Mr. Dinesh Thakur, Advocate, vice counsel for the respondent. Justice Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 31.5.2002 passed by the learned Sessions Judge, Kangra at Dharmshala in Sessions Case No. 32-N/VII/2001 whereby he acquitted the accused of having committed an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 2. Accused was acquitted on two grounds. Firstly that there was non compliance of Section 50 of the Act and secondly that no independent witness had been joined in the search and seizure operation. 3. As far as the first ground is concerned we are of the considered view that in view of the law laid by the Supreme Court in State of Himachal Pradesh versus Pawan Kumar, Latest HLJ 2004 (SC) 1247, the provisions of Section 50 of the Act are not applicable since the search was admittedly conducted from a bag which was hung on the shoulder of the accused and not from his personal search. 4. However, the second ground on which the accused was acquitted is not without merit. True it is that now the trend of the authorities is that even if independent witnesses turn hostile conviction can be based on the sole testimonies of the police officials. It is also a settled law that in every case it is not necessary to have independent witnesses in case the prosecution can show that the search was carried out at such a time or at such a remote or inaccessible area where witnesses were not available and where if efforts were made to get the witnesses associated, the accused had opportunity to flee. 5. As far as the facts of the case are concerned admittedly the accused was apprehended on the ‘Chounch Khad’ at about 7.30 p.m. It was the month of September and therefore not late at 3 night. Constable Sandeep Kumar (PW-1) who was member of the raiding party states that ‘naka’ had been laid by police party which included him and also comprised of ASI-Onkar Singh, HC-Subhash Chand, Constables Raghubir Singh, Raj Kumar and Vinod Kumar. Thus there were six police officials present. This witness also admits that on one side of the bridge there is village Malot and on the other side of the bridge there is village Dah. According to this witness 150 persons reside in each of these villages. He admits the suggestion that just adjoining the bridge there are some houses. He also admits that shop of Surinder Kumar, Halwai is situated at a distance of 25 mts. from the bridge and that an ayurvedic clinic is situated at a short distance from the bridge. He admits that there are bazaars both in village Malot and Dah. No independent witness was associated. The explanation given is that since no person was present at the spot no villager was associated. He clearly states that police officials were not sent to call any persons from these villages. 6. HC-Subhash Chand (PW-5) has categorically denied that village Malot is 25 meters from one side of the bridge and village Dah is 100 meters from the other side of the bridge. According to him the villages are at a distance of 3 and 3½ kilometers away from the bridge. He admits that Damtal is 3 – 4 kilometers from the bridge. His statement is totally different from that of PW-1. He has expressed his ignorance about the shop of Surinder Kumar, Halwai or ayurvedic clinic of Dr. Tirath. He denied 4 that there are any houses at a distance of 25 meters from the bridge. 7. Sh. Rajesh Sharma (PW-2) was examined by the prosecution. He runs a shop of dry fruits at Damtal and according to him HC-Subhash Chand (PW-5) came to his shop and took electronic scale from his shop. HC-Subhash Chand (PW-5) also states that he went to Damtal to bring scales and weights. If this witness could go all the way to Damtal to get weights and scales what prevented the police party which comprised of six persons from associating any witness from the nearby area. 8. ASI-Onkar Nath (PW-12) also clearly states that no effort was made by the police to associate any independent witness. He admits that on one side of the bridge village Dah and on the other side village Malot is situated and volunteered that both the villages are at a distance of 150 yards from the bridge. This totally shatters the statement of PW-5. Thus it is apparent that no effort was made to arrange independent witnesses though there was sufficient opportunity with the police to have independent witnesses. 9. Another reason to disbelieve the testimony of the prosecution is that whereas Sh. Rajesh Sharma (PW-2) states that he had handed over electronic scale to HC-Subhash Chand but according to HC-Subhash Chand what he had brought was an old fashioned scale from Rajesh Sharma (PW-2). 5 10. Keeping in view all these facts and circumstances we find no merit in the appeal and the same is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. (Justice Deepak Gupta), Judge. (Justice Sanjay Karol), Judge. August _12_, 2011 (PK)