1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 482 of 2001 Decided on May 03, 2011 ________________________________________________________________ State of H.P. …Appellant. Versus Pawan Kumar ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr.R.K. Sharma,Senior Additional Advocate General, with Mr. Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Ajay Chandel, Advocate. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to judgment dated 22.6.2001, passed by Learned Sessions Judge, Kullu, H.P., in Sessions Trial No.21/2001 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), acquitting the alleged respondent-accused. 2. The prosecution case is that on 8.12.2000, ASI Vikas (PW.8) accompanied by constable Kishori Lal, Pune Ram, while on traffic checking, at Forest Check Post, Largi at about 7.00 P.M, noticed a HRTC bus coming from Sainj side, where the passengers got down from the bus, whereas accused while 2 alighting the bus was carrying two bags, however, on suspicion he was stopped and his name was enquired. After obtaining option of the accused that whether he wants to be searched before a Magistrate or Gazetted Officer or by the police party, he opted vide consent memo Ex.PW1/C, to be searched before the police. The bags carried by the accused were searched in presence of Forest Guard, namely, Puran Chand (PW.1) and witness Bhajan Singh (PW.7). From blue-red coloured bag 5 kg. 300 grams charas was recovered. Three samples of 25 grams each were separated, packed and sealed with seal impression 'A'. The remaining charas was also packed and sealed separately. NCB forms were filled-in, seal impression taken and seal was handed over to Puran chand. 3. After investigation, respondent-accused was charged for the offence under Section 20 of the 'NDPS Act'. In order to prove its case, the prosecution has examined as many as 8 prosecution witnesses, whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 4. PW.1 Sh.Puran Chand, deployed as Forest Guard at the relevant time, has stated that on 8.12.2000, he was on duty where police laid Nakka. At about 5.20 P.M, a bus came from Sainj side which was stopped by the police in which police entered for the purpose of checking and police personnel brought a person from the bus alongwith two bags. Out of two bags, one bag was in the hand of accused Pawan Kumar and another was carried by ASI. Accused was made to sit on the 3 parapet on one side of barrier and papers were prepared and signatures of PW.1 Puran Chand were obtained. PW.1, however denied in cross-examination that accused was carrying two bags when came out from the bus. PW.1 Puran Chand has also stated that from the red-blue coloured bag, charas in the form of tablets and sticks was found. After taking out the samples and putting seal over it, the seal was not handed over to PW1 Puran Chand. PW.1 has also stated in cross-examination that he was not aware that whether NCB form was filled-in. PW.1, however, stated that his signatures were obtained in certain papers, however, he did not read the contents thereof. PW.1 also denied that any search was made in his presence. PW.1 Puran Chand, however has not supported the prosecution case. 5. PW.2 HC Saraswati has stated that on 9.12.2000, Dy.S.P. Head Quarter Kishan Chand, handed over special report of the case to him. 6. PW.3 Uttam Chand, Constable, has stated that ASI gave him Ruqa at Larji Forest Check Post. PW.4 Sunil Kumar, Constable, received sample packet of charas from MHC Narain Singh on 10.12.2000 alongwith seal having impression 'B' and NCB form, which were taken to CTL Kandaghat vide RC No.67/2000. 7. PW.5 MHC Narain Singh has made entry in Malkhana register. On 10.12.2000 one sample charas alongwith sample seal 'A' and 'B', NCB form alongwith RC No.67/2000 was sent by PW.5 MHC Narain Singh to CTL Kandaghat through Constable Sunil Kumar. 4 8. PW.6 SHO Sanjay Kumar has registered FIR Ex.PW.6/A and also received sample seal and NCB form, which were resealed with impression 'B'. PW.6 also put impression of the same on NCB form and kept sample seal separately. As per testimony of PW.6 Sanjay Kumar, all the packets, NCB form, sample seals were entrusted to MHC Narain Singh. 9. PW.7 Sh.Bhajan Singh has stated that on 8.12.2000 the police constable come to his liquor shop and told that charas has been recovered from a person at Check Post of Forest Department. PW.7 accompanied him to the Forest Check Post and observed charas lying on the table and his signatures were obtained on certain papers. As per testimony of PW.7 made in cross-examination, he was neither standing near Forest barrier Sainj nor a person came from Sainj side, who stopped by the police at Check Post. PW.7, however, has not supported the prosecution case. 10. PW.8 ASI Vikas has stated that on 8.12.2000, he alongwith Constable Kishori Lal, Pune Ram and Khem Chand driver was on traffic duty at Check Post, Larji, where contraband was recovered from the bag being carried by the accused. As per testimony of PW.8 Vikas, search was made after giving the accused an option. PW.8 has further stated that bag, charas and sample were taken into possession vide recovery memo Ex.PW.1/A over which Constable Puran Chand (PW.1) and Bhajan Singh (PW.7) put their signatures. Thereafter, PW.8 sent Ruqa Ex.PW.8/A through constable Uttam Chand to Police Station, Kullu for registration of FIR. Site plan 5 Ex.PW.8/B was also prepared. As per testimony of PW.8, made in cross-examination, there was dark and there were 20-25 passengers in the bus on 8.12.2000 and witnesses were associated after police personnel noticed accused Pawan Kumar. As per testimony of PW.8, all the documents including sample seal were prepared on the spot and nothing was omitted or added therein later-on and within 1 ½ hour investigation of the case on the spot was completed. 11. On scrutiny of the prosecution witnesses and materials on record, we notice that PW.1 Puran Chand, Forest Guard and PW.7 Bhajan Singh said to be associated as independent witnesses, have not supported the prosecution case whereas, other prosecution witnesses in due discharge of their official duty have endeavoured to support the prosecution case. However, ASI Vikas (PW.8), has endeavoured to indicate that all the documents including sample seal were prepared on the spot and nothing has been omitted and added therein later- on. We notice that the documents so prepared such as consent memo Ex.PW.1/C, seizure memo Ex.PW.1/A and search memo Ex.PW.1/E prepared prior to sending of the Ruqa Ex.PW.6/B for the purpose of registration of FIR in Police Station, Banjar, indicate that the FIR number is mentioned in the same hand and ink. Scrutiny of these papers reveals that these cannot be prepared on the spot in dark night, more so, when FIR number was not available to the police at that time. 6 12. After analysis of the prosecution witnesses and materials on record, in totality of the facts and circumstances, it appears that the testimonies of prosecution witnesses are not inspiring confidence. Though the impression is being given that the procedural formalities have been made in routine course in consonance to the norms prescribed therefor. In our considered view documents have not been prepared by PW.8 ASI Vikas on the spot but somewhere else, as such, the recovery of the contraband good as alleged by the prosecution itself become doubtful. 13. In view of the facts and circumstances of the case, learned Sessions Judge has rightly arrived at a conclusion that the prosecution has failed to prove its case beyond reasonable doubts. In our considered view, there is no scope of interference in the findings given by learned Sessions Judge. Accordingly, the present criminal appeal, being devoid of any merit, is dismissed. 14. The bail bonds furnished by the accused/respondent are hereby discharged. (R.B. Misra) Judge May 03, 2011 (V.K. Sharma) (Purohit) Judge