IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 90 of 2002 Date of decision: 20.6.2011 __________________________________________________________ State of H.P. .....Appellant. Vs. Shyam Lal .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra, J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? For the appellant : Mr. R.K. Sharma, Sr. Addl. Advocate General. For the respondent: Mr. Ramakant Sharma and Ms. Devyani Sharma,Sharma, Advocates. Justice R.B. Misra, J (Oral) The present criminal appeal has come up for consideration after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 25.7.2001, passed by the Additional Sessions Judge, Solan in Sessions Trial No. 12-S/7 of 2000, acquitting the respondent-accused for the alleged involvement for the offences, under Sections 18 and 20 of the Narcotics Drugs & Psychotropic Substances Act, 1985 (in short ‘the Act’) in reference to FIR No. 140 of 2000, dated 2.9.2000. 2. The prosecution case is that on receiving secret information by the I.O. that accused-respondent used to sell opium near Haripur Bridge, Barotiwala road, the same was recorded and was sent to Dy.S.P., Nalagarh through Constable Jaswant Singh and associating Prem Chand and Mohinder singh in the raiding party, PW-10 Vijay Kumar went to Haripur Bridge, Barotiwala road, where accused-Shyam Lal on seeing the police party had tried to run away, however, he was apprehended and on apprehension, he was informed whether he wanted to be searched by the Gazetted Officer or by the Magistrate or before the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Police Officer. Accused-respondent gave his consent to be searched by the Police Officer. Thereafter, search of Shyam Lal-accused was conducted and after search 50 grams of opium was found in possession of accused. Two samples of 5 grams each were taken and kept in two match boxes and sealed with impression ‘T’ and remaining opium was sealed in a separate parcel with seal impression ‘T’. Case property was taken into possession vide memo Ex. PW1/J. Seal was handed over to Mohinder Singh after use and ruka Ex. PW-4/A was prepared and sent to Police Station, Barotiwala through Constable Anil Kumar for registration of FIR. Thereafter, ASI Sudarshan Singh reached at the spot and all the documents were handed over to him vide Ex. PW1/K. After fulfilling the formality, samples were sent for chemical examination and chemical report Ext. PW-10/A was obtained and after investigation accused was charged for the aforesaid offences. 3. In order to prove its case, prosecution examined as many as eleven witnesses, whereas, the accused through his statement under Section 313 Cr.P.C. denied the prosecution case. 4. On 2.9.2000 PW-1 Prem Chand has stated that on 3.9.2000, when he was present at his shop, however, is not aware about any incident, was called by the Investigating Officer at Police Station and his signatures were obtained on plain papers. PW-1 did not know Shyam Lal. PW-1 was, however, declared hostile. In cross-examination also, PW-1 did not support the prosecution case at all. 5. PW-9 Mohinder Singh another independent witness said to have been associated with raiding party had stated that on 3.9.2000 when he was present in Truck Union’s Office at Barotiwala, he was summoned to the Police Station and told by the police official that opium had been recovered, however, has not supported the prosecution case. 3 In cross-examination also, PW-9 did not support the prosecution case, however, self stated in cross-examination that memo Ex. PW1/C was prepared in the Police Station and has also denied that the accused had consented to give his search before the Investigating Officer. The consent was prepared as per testimony of PW-1 in the Police Station. PW-9 has also denied in cross-examination that the search of the recovered opium was made in his presence. 6. PW-2 Banwari Lal posted at Police Station, Barotiwala has stated that on 4.9.2000 two parcels were handed over to him by MHC and he deposited them in CTL, Kandaghat and these parcels were sealed with seal impression ‘H’ and ‘T’ respectively and parcel was taken vide R.C. No. 42/2000 to CTL, Kandaghat. 7. PW-3 HC Prem Lal has stated that on 2.9.2000 he was posted at Police Station, Barotiwala. A secret information was received by SHO that accused Shyam Lal used to sell charas and opium on Saturday and Sunday and such information was reduced into writing and sent to Dy.S.P., Nalagarh. PW-1 and PW-9 were associated as independent witnesses and on reaching near Haripur Pulli, the raiding party observed accused who tried to leave the spot when he saw the police officials, however, the police caught the accused and after enquiring his identity and giving option in writing whether he wanted to be searched by the Magistrate or by the Gazetted Officer or by the Investigating Officer and after obtaining his consent, his personal search was conducted and 50 grams opium was recovered from his pocket and all formalities were made. PW-3 has further stated in cross-examination that he along with SHO and other police officials went to Surajpur for patrolling in a private vehicle of Vijay Kumar, a resident of Barotiwala after paying Rs. 150/- as vehicle charges and took Maruti van from the Bus 4 Stand, Barotiwala and associated Prem Chand, resident of Chandigarh and Mohinder, resident of Haripur Sandoli. 20-25 houses were situated in Surajpur, however, he did not call any person from village Surajpur. No official from Forest Check Post was also called by the SHO. 8. PW-4 Anil Kumar Constable No. 338 associated with raiding party has stated that after recovery of opium from the accused, ruka Ex. PW4/A was written and was handed over to him. He brought the ruka to Police Station and handed over the same to the MHC for registration of the case. PW-5 C. Jaswant Singh has stated that on 2.9.2000 SHO had given him documents vide Ex. PW5/A, which he deposited in Police Station, Nalagarh by travelling in a private vehicle. 9. PW-6 HC Neelam Kumar posted as MHC with whom SI Vijay Kumar had deposited three parcels out of which two parcels contained opium of 5 grams each were sealed with seal impression ‘T’ and on 4.9.2000, the samples were sent to CTL, Kandaghat through Constable Banwari Lal. PW-7 HC Yoginder Singh submitted the special report to the Investigating Officer. PW-8 HC Ram Nath had entered the reasons of belief Ex. PW-5/A in the receipt register. 10. PW-10 SI Vijay Kumar in his endeavour to support the prosecution case has stated in cross-examination that while on patrol duty in village Surajpur, they received a secret information at 4.15 p.m. on 2.9.2000 and accordingly the same was sent to Police Station, Nalagarh and after taking the consent of accused-Shyam Lal, an illiterate person, search was made. PW-10, however, has stated in cross-examination that in Ex. PW-1/A and Ex.PW-1/C, it was not written that the contents of these memos were readover to accused-Shyam Lal (an illiterate person). PW-10 has further stated in cross-examination that village Surajpur is a big village and many shops are situated there. He did not associate any 5 person from village Surajpur. 11. PW-11 ASI Sukhdarshan Singh working as Investigating Officer has stated that on 2.9.2000 ruka Ex. PW4/A was received in Police Station and in that reference FIR No. 140 of 2000 was written. PW- 11 along with ASI Salim Ahmad, C. Anil Kumar with case file went to the spot near Haripur Pulli Barotiwala Road where SHO handed over the documents of the case, such as, reason of belief, consent memo of accused, memo of search etc. and PW-11 prepared the site plan and arrested the accused and completed investigation. 12. From the testimony of PW-6 HC Neelam Kumar, who was posted as MHC at Police Station, Barotiwala, it was not clear as to how the samples were sent and how the samples of opium were re-sealed before sending the same to CTL, Kandaghat. Unless the prosecution case is supported with the materials on record, we notice that two independent witnesses PW-1 and PW-9 associated with the raiding party have not supported the prosecution case at all. These two independent witnesses were not from the close vicinity surprisingly neither any independent witness from village Surajpur was associated nor shop keeper was associated. Both independent witnesses, PW-1 and PW-9 have denied search and recovery of opium. The other official prosecution witnesses have not indicated the place from where the search was made. It appears from Ex. PW-10/A that no facsimile seal had been put over it which could indicate and help for verification of the report received from CTL, Kandaghat. It appears that FIR was lodged after the search was made. Accused-Shyam Lal was not apprised of his valuable right of being searched by a Gazetted Officer or Magistrate, as such, the mandatory requirement of Section 50 of the Act was not completed. Ex. PW-1/A indicate that left thumb impression of Shyam Lal was obtained in 6 presence of PW1 Prem Chand and PW-9 Mohinder Singh, whereas, they have denied the search and recovery by saying that their signatures were obtained on plain papers in the Police Station. Exts. PW-1/A and PW-1/C also do not indicate that the legal requirement of Section 50 of the Act was completed before making search. PW-1/C only indicate that on suspicion that accused was in possession of opium, as such, accused was told that whether he was willing to be searched by a Magistrate or by a Gazetted Officer or by the Police Officer and on agreeing by Ex. PW- 1/A search was made and none of these documents Ex. PW-1/A as well as Ex.PW-1/C indicate that he was apprised of the valuable right and as such the entire case of the prosecution is vitiated for non-compliance of Section 50 of the Act. Vijay Kumar on whose private car the police officials had travelled to Barotiwala has also not been surprisingly examined. Ex. PW-10/A also does not inspire confidence in essence that it has been prepared summarily at one stretch at the spot. In these circumstances, the link evidence is missing. In the facts and circumstances, for non-compliance of Section 50 of the Act as well as for lapses having been made in procedures, the prosecution case is vitiated. In our considered view, the prosecution has miserably failed to prove its case and bring home the guilt to the accused beyond any reasonable doubt. There is no scope of any interference in the impugned judgment of the learned trial Court, therefore, the appeal being devoid of any merit, is dismissed. Bail bonds furnished by the accused are discharged. (R.B. Misra) Judge (V.K. Sharma) Judge June 20, 2011 (cr)