IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 636 of 2000 Date of decision: 29.09.2010 __________________________________________________________________ The State of H.P. .....Appellant. Versus Som Nath @ Babli. .....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 with Mr. Rajinder Dogra, Addl. Advocate General. For the respondent: Ms. Shikha Thakur, Advocate, Amicus Curiae and Mr. Ashok Tyagi, Advocate. R.B. Misra, J (Oral). Ms. Shikha Thakur, Advocate, has been requested to assist this Court as Amicus Curiae on behalf of accused-respondent and she has kindly agreed to the same. Accordingly, Ms. Shikha Thakur, Advocate, has assisted this Court on behalf of accused- respondent in response to the submissions made by Mr. R.K. Sharma, Sr. Additional Advocate General, for the appellant-State. 2. The present criminal appeal has come up for consideration after leave to appeal under Section 378 (3) of the Code of Criminal Procedure has been granted in reference to the impugned judgment and order dated 03.08.2000, passed by 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... learned Sessions Judge, Bilaspur, District Bilaspur, Himachal Pradesh, in Sessions Trial No. 3 of 2000, acquitting the alleged accused under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985. 3. The case of the prosecution is that on 12.02.2000, the accused-respondent was traveling in Punjab Roadways bus No. PB-11- N-3818 from Patiala to Mandi. On search, 4 kgs and 350 grams of charas was recovered from the bag of the accused-respondent. Two samples of 50 grams were taken from the recovered charas. The charas and the samples were put in separate parcels which were sealed with seal 'K'. The samples were sent for chemical examination. After completion of investigation, the accused-respondent was charged for the aforesaid offence. 4. In order to prove its case, prosecution examined as many as nine witnesses, whereas, accused through his statement under Section 313 Cr.P.C. denied the prosecution case. 5. Out of prosecution witnesses, Hardev Singh PW-3, Hari Nand Sub Inspector PW-4 and Kashmiru Ram Police Inspector PW-9 are the eye witnesses, while Vijay Sekhar PW-1, Roshan Lal PW-2 are the recovery witnesses and Anant Ram Sub Inspector PW-5, Head Constable Ram Lal PW-6, Brij Lal Constable PW-7 and Head Constable Chet Singh PW-8 are the formal witnesses. Besides this, prosecution has also led in evidence documents which are Ex. PA to Ex. PH and Ex. PJ. Prosecution has also led evidence Ex. P-4 to Ex. P-9, which are bus tickets of the accused. Recovered charas is Ex. P-1, sample of charas is Ex. P-2 and bag is Ex. P-3. On appraisal of the prosecution witnesses and the material on record, we notice that Hardev Singh ...3... PW-3, Hari Nand Sub Inspector PW-4 and Kashmiru Ram Inspector PW-9 were said to have witnessed the alleged recovery of contraband goods, whereas, Hardev Singh PW-3 being the conductor of the bus, in which the accused-respondent was traveling, stated that when the bus was stopped by the police at Lakhanpur barrier, the police had apprehended one person who was carrying attache case, which was kept in the carriage of the bus inside the bus. PW-3 has further stated that one bag kept inside that attache case and there was one cloth bag inside that bag and inside the cloth bag there was one polythere bag, in which sticks of black colour were found and after weighing it was found that the sticks were 4 kgs and 350 grams. PW-3 has also stated in his cross-examination that there was other attache case in the carriage of the bus and there was one more person sitting by the side of the accused-respondent inside the bus and when the bus was stopped by the police, that person slipped away from the bus. As per the testimony of PW-3, the accused-respondent was telling to the police that the attache case did not belong to him. 6. PW-4 Hari Nand, Sub Inspector, has stated that after the bus was stopped at Lakhanpur barrier, one passenger got up from his seat and he started going towards the back seats of the bus and that person was asked by Shri Kashmiru Ram, Inspector PW-9, to sit on his seat and thereafter Shri Kashmiru Ram had asked him to get his luggage checked and that person had given his bag to Shri Kashmiru Ram for checking. PW-9 has further stated that before the bag was given to Shri Kashmiru Ram for checking, Shri Kashmiru Ram had asked that passenger as to what was kept in that bag and the passenger had replied that charas had been kept in the bag. As per ...4... the testimony of PW-9, after the bus was stopped, he and other police officials had gone inside the bus and at that time one passenger had got up from his seat and he had started going towards the back seats of the bus, but he was caught hold by the police officials. On search of his luggage, contraband goods were recovered. 7. PW-3 Hardev Singh has stated that the bag in which charas was kept was taken out from the attache case and the attache case was kept in the carriage of the bus inside the bus, while, Shri Kashmiru Ram (PW-9) has stated that the bag which was recovered was kept near the seat of the accused-respondent. Apparently, we notice major and material contradictions which goes to the root of the prosecution case. Besides this, Hari Nand, Sub Inspector (PW-4) has stated that before the accused-respondent had opened his bag, he had told that he had kept charas in the bag also does not appear to be plausible and convincing or probable because the same does not appear to reason and common sense. 8. None of the prosecution witnesses has endeavoured to say that the bag taken from the from attache case, from which the contraband goods were recovered, was in exclusive and conscious possession of the accused-respondent. The prosecution is required to prove that the bag or the attache case, which was lying inside the bus near the seat of the accused-respondent from where charas was recovered, belonged to the accused-respondent. 9. We also notice that Hari Nand (PW-4) and Kashmiru Ram (PW-9) are slightly consistent, whereas, these are not corroborating the testimony of Hardev Singh (PW-3), the conductor of the bus, who has not supported the prosecution case at all. The statement of PW-4 ...5... Hari Nand to the extent that the accused-respondent had told Shri Kashmiru Ram, Inspector that he was carrying charas in his bag, does not appear to be reasonable and probable worth to be relied upon. 10. From the materials on record, we also notice that the alleged recovery was witnessed by Hardev Singh (PW-3), the bus conductor, Joginder Singh, driver of the bus and Vijay Sekhar, however, Joginder Singh, driver of the bus, has not been examined and was left unnecessarily. PW-1 Vijay Sekhar has not supported the prosecution case to the extent he was expected. In cross-examination PW-1 stated that when he reached the rain shelter, the bag was lying on the earth and it was not being held by anyone. 11. In view of the contradictions, being apparently noticed from the prosecution witnesses and the materials on record, the prosecution has failed to prove its case beyond reasonable doubt. In our considered view, the prosecution has failed to bring home the guilt against the accused-respondent and we do not find any scope of interference in the judgment of the trial court. Appeal being devoid of merit is dismissed. 12. The Court appreciate the efforts made by Ms. Shikha Thakur, Advocate, in assisting the Court on behalf of accused- respondent as Amicus Curiae. (R.B. Misra) Judge (V.K. Sharma) Judge 29th September, 2010 (virender)