IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 135 of 2001 Date of Decision: 26.2.2011 State of H.P. …Appellant. Versus. Gaurja Devi …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol , Judge. Whether approved for Reporting? No. For the Appellant: Mr. Rajesh Mandhotra, Dy. A.G. For the Respondent: Mr. Y.P.S. Dhaulta, Advocate. Per Deepak Gupta, J.(Oral) 1. This appeal is directed against the judgement dated 7.9.2000 passed by the learned Sessions Judge, Mandi, in Sessions Trial No. 21 of 1997 whereby he acquitted the accused of having committed an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (here-in-after referred to as the Act). 2. The prosecution case, in brief, is that on 27.9.1996 PW-9 Bhim Singh Rana, SHO Police Station Gohar received information at village Saryali where he had gone for an excise raid that the accused who resides in 2 village Bagsaid deals in illicit liquor. Thereafter PW-9 constituted a raiding party and associated PW-1 Purshotam and PW-2 Lal Singh as independent witnesses in the raiding party. They reached the house of the accused. The accused was not present in his house and had gone to the jungle. The house was locked. The accused came back after some time and opened the lock. Then the police officials informed the accused that they wanted to search the house of the accused. She took the police officials to the upper storey where a number of boxes were lying in the room. These boxes were locked. The accused was asked to open the locks. From one of the boxes illicit liquor was recovered in a can. From the second box one gunny bag was recovered which contained opium seeds. In the same gunny bag there was another bundle of polythene wherein opium had been wrapped in a polythene sheet. On weighment the opium was found to be 1 k.g. Two samples of 10 grams each were taken and the remaining bulk opium was sealed separately. Sample of the poppy seeds were also drawn and sealed separately. Thereafter, Ruka Ext.PW- 6/A was sent to the Police Station for registration of the case. The remaining codal formalities and investigation 3 was done at the spot. The accused was arrested and special report Ext.PW-4/A was sent to the police station. One of the samples of the opium was sent to the chemical analyst vide report Ext.PW-8/A. The chemical analyst opined that the sample is of opium and thereafter challan was filed against the accused. The accused pleaded not guilty and claimed trial. 3. The learned trial Court has acquitted the accused and one of the main grounds for acquittal is that the two independent witnesses have not supported the prosecution version. 4. As per the prosecution case the raiding party consisted of PW-9 and the independent witnesses PW-1 and PW-2. Both PW-1 and PW-2 have not at all supported the prosecution case. According to PW-1 he was associated by the police and he went to the house of the accused but according to him he remained standing outside and it was the police alone which went inside and brought out something from the house of the accused. He does not know what was the substance brought out but he just signed the recovery memo. PW-1 was cross-examined by the prosecution at length. He admitted his signatures on the recovery memo and other documents but he again stuck to his version that 4 he did not go to the house and nothing was recovered in his presence. 5. As far as PW-2 is concerned he totally resiled from his earlier statement and according to him he was asked by the police officials to sign some documents in the Rest House at Bagsaid. He has also been cross- examined but other than admitting his signatures on the recovery memo Ext.PW-1/A he has denied the entire version of the police. 6. PW-9 in his statement gives impression as if only he and the independent witnesses formed the raiding party but a perusal of Ext.PW-6/A shows that PW-9 at that time was accompanied by Constable Sohan Lal No.452, Constable Bansi Lal No.141, lady Constable Kaushlya Devi No.271 and ASI Amar Singh. None of these police officials have been examined to prove the factum of raid having been conducted and the recovery being made from the house of the accused. No doubt, the law is very well established that even if independent witnesses turn hostile the statements of the police officials cannot be discarded only on this ground. Police Officials are also competent witnesses but here we are dealing with a case where not only the independent witnesses have turned hostile but the prosecution has 5 failed to examine any of the police officials except the investigating officer. This is a great lapse on the part of the prosecution. 7. There are other reasons also to discard the testimony of PW-9. In his testimony he has stated that the seal relating to the sealing of opium was handed over to PW-1 Purshotam and the seal which was used to seal the illicit liquor was handed over to Lal Singh. The learned trial Court has noticed that the seal which was produced in Court by Purshotam is the same seal which was stated to have been handed over to Lal Singh. The witness could not explain how seal ‘H’ which should have been in the custody of Lal Singh was produced by Purshotam. Furthermore, in the Ruka there is no mention of any illicit liquor. The witness has again failed to give any plausible explanation with regard to this. On account of the discrepancies in the statement of PW-9 the learned trial Court was justified in not relying upon the same. 8. Another reason to acquit the accused is that even according to the police officials a 15 year old son and the major daughter-in-law of the accused were found at the house when raid was conducted. It has also come in the evidence that three of her sons reside in the said 6 house. Therefore, it cannot be said that opium, if any, recovered from her exclusive possession. 9. The investigating officer in this case has failed to investigate the matter properly. According to the Investigating Officer the illicit liquor and opium seeds were kept in two different boxes, which were locked. Neither the locks nor the boxes were taken into possession. It was essential for the prosecution to have produced these locks and boxes and non seizure of the same also caste a doubt on the prosecution version. 10. In view of the above discussion we find no merit in the appeal, which is accordingly dismissed. The bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 26th February, 2011 ( Sanjay Karol ) ™ Judge.