HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.360 of 2000. Decided on: September 22, 2010. State of H.P. …Appellant. VERSUS Tilak Raj ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the Appellant: Mr.R.K.Sharma, Sr.Addl.A.G. with Mr.Rajinder Dogra, Addl.A.G. For the respondent: Mr.Rakesh Raghuvanshi, Advocate. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 1st April, 2000, passed by learned Sessions Judge, Shimla, H.P., in Sessions Trial No.1-S/7 of 2000, acquitting the respondent / accused under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). Whether the reporters of the local papers maybe allowed to see the judgment? …2… 2. The prosecution case, in brief, was that on 15.9.1999 at about 11.30 A.M., Head Constable Mohar Singh, Police Station, Theog, accompanied by Constable Narainder Prakash, while deputed on traffic control duty at the Bus Stand, spotted respondent / accused coming from the opposite direction. On seeing the police officials in uniform, he turned back and started walking backwards and on suspicion, the Head Constable followed him and over-powered him. HC, Mohar Singh, informed the Deputy Superintendent of Police telephonically upon which the Deputy Superintendent of Police reached the spot within no time. He asked the accused if he wanted his person to be searched by him, for which the respondent / accused agreed and searched the person of the respondent / accused and from the rexine bag, which he was carrying, Charas was recovered. Before making such search, the consent of the respondent / accused was obtained for being searched by the Deputy Superintendent of Police. On weighment, it was found to be 1 Kg. 600 grams, out of which two samples each weighing 25 grams were separated. The samples and the bulk Charas were then made up into three parcels. The parcels were sealed. Case property was deposited with the MHC, Police Station, Theog, who sent one of the two samples to …3… the Chemical Laboratory, Kandaghat and the Chemical Examiner opined that the contents of the sample were of Charas. After investigation, the respondent / accused was charged for the aforesaid offence and the case was committed to the Sessions Court. 3. In order to prove its case, the prosecution has examined as many as seven witnesses, whereas, the respondent / accused, through his testimony under Section 313 Cr.P.C., has denied the prosecution case. The witnesses are Head Constable Mohar Singh, two independent witnesses, in whose presence the search of the accused was allegedly conducted, namely, PW-2 Sandeep Chandel and PW-3 Bal Krishan and PW-7 Deputy Superintendent of Police, Nag Chand Walia, who conducted the search. 4. On scrutiny of prosecution witnesses and materials on record, the two independent witnesses, namely, Sandeep Chandel (PW-2) and Bal Krishan (PW-3), did not support the prosecution case. However, PW-1, HC Mohar Singh, and PW-7, Nag Chand Walia, Deputy Superintendent of Police, have endeavoured to support the prosecution case. PW-1 has stated that the respondent / accused was seen coming from the opposite side when he, in the company of Constable Narainder Parkash, was going …4… towards the Bus Stand in connection with the traffic control duty and that on seeing the police officials in uniform, the respondent / accused turned back and endeavoured to escape, therefore, on suspicion, he was apprehended and on search contraband goods were recovered. 5. PW-7, Nag Chand Walia, has stated that Head Constable Mohar Singh had apprehended a man with Charas on the main road near the residence of the Station House Officer and that within a few minutes, he reached the spot. PW-7 has further stated that the respondent / accused was carrying bag Ext.P-1. It has also been stated by him that the respondent / accused indicated no objection of being searched his person by the police officials and accordingly on search, contraband goods were recovered from him. PW-1, Mohar Singh, has stated that three samples each, weighing 25 grams, had been separated from the recovered Charas but PW-7, Nag Chand Walia, has stated that only two samples were separated. According to the testimony of PW-7, the case property was deposited by him with MHC around 1 P.M. but another police official, namely, PW-5 Karam Singh, Assistant Sub Inspector, who was officiating as Station House Officer, Police Station, Theog, on the relevant date, has stated that the case property was deposited with …5… him by the Deputy Superintendent of Police around 5 or 6 in the evening and after re-sealing the case property with his own seal, which produced the impression ‘K’, he deposited the same with the MHC. 6. Report of Chemical Examiner, Ext.PJ, does not stand connected with the sample drawn from the Charas allegedly recovered from the respondent / accused. The Chemical Examiner has certified that the seal impressions upon the sample parcel tallied with the specimen impressions of the seal sent separately. The prosecution has failed to examine any witness to make comparison with the impression on sample parcel and with that of report of the Chemical Examiner. In absence of positive evidence that specimen seal impressions were taken and sent to the Chemical Examiner, there is no escape from the inference that the seal impressions on the parcel were compared by the Chemical Examiner with the specimen seal impressions of some other case. Besides this, the respondent / accused was also not apprised that he has a legal right to be searched. In the present case, we also notice, as per the version of PW-7, that he deposited the case property with MHC around 1 P.M. but PW-5 Karam Singh, A.S.I., who was officiating as Station House Officer, on the relevant date, has stated that the case property was deposited with him by the Deputy …6… Superintendent of Police around 5 or 6 in the evening but his testimony contradicts to the testimony of PW-5, as such, the compliance of the provisions of Section 55 of the NDPS Act is also doubtful. 7. In view of the inconsistencies and contradictions having been noted by the learned Sessions Judge, he has rightly arrived at the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope for interference in the impugned judgment and the criminal appeal, being devoid of any merit, is accordingly dismissed. 8. Bail bonds, furnished by the respondent, are hereby discharged. (R.B.Misra), J. September 22, 2010. (V.K.Sharma), J. (soni)