IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 305/2003 Decided on: 11.11.2011 State of H.P. …Appellant. Versus Chuhar Singh …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon'ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No For the appellant : Mr. Rajesh Mandhotra,Deputy, Advocate General. For the respondent: Mr. N.K Thakur, Advocate. _____________________________________________________________ Deepak Gupta, Judge. (Oral) This appeal by the State is directed against the judgment dated 21st March, 2003, passed by the learned Sessions Judge, Chamba in Sessions Case No. 15 of 2002 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act). 2. The prosecution story, in brief is that on 22.11.2001, the accused was travelling in a bus belonging to the Himachal Road Transport Corporation,(HRTC)Chamba bearing No.HP-48-4528 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes which was going from Chamba to Delhi. The bus was stopped at Tunuhatti Police Check Post and PW-13, HC Chain Singh, went inside the bus for routine checking purpose. On seat No. 42, he found a passenger (accused) travelling in the bus who alone was sitting on the seat. The accused had kept one black bag between his legs and he was holding the straps of the bag in his hand. PW-13 opened the bag and found another plastic bag inside it On opening this plastic bag, he found another green bag having zipper on it and when this green bag opened, it contained another plastic bag inside which charas was kept. On asking his identity, the accused disclosed his name as Chuhar Singh . PW-13, thereafter,alighted from the bus alongwith the accused in the presence of PW-7,Om Parkash, and PW-8, Pritam Singh. The accused was allegedly brought to the Tunuhatti Police Check Post. Rukka EX.PA was sent to the Police Station for registration of FIR and Chain Singh,PW-13 waited for the Investigating Officer,PW14 Joginder Singh. Thereafter, he handed over the accused and the bag containing the contraband to Joginder Singh. 3. According to PW-14,ASI Joginder Singh, on receipt of the rukka he recorded FIR,Ex-PB, and proceeded to the spot. He took custody of accused Chuhar Singh as well as the bag in the presence of PW-7 and PW-8. On opening the bag, charas was found and on weighment, it was found to weigh 1 kg. 850 grams. Two samples of 10 grams each were taken out separately and were sealed with seal impression 'A'. The remaining bulk charas was also sealed in a similar manner. The other codal formalities were completed at the spot and thereafter, the charas was deposited in the Malkhana on the same day. One of the samples was sent to the CTL Kandaghat and on anlysis vide report Ex.PC, the sample was found to be that of charas containing resin to the extent of 24.21%. On this basis, the accused was charged with having committed the offence aforesaid . After trial, he has been acquitted. Hence this appeal. 4. PW-9 Vishwanath, conductor of the bus and PW-11 Brahamanand , driver of the bus, have not at all supported the prosecution case. Though PW-9 has admitted that one passenger was caught by the police and de-boarded from the bus, he has not at all supported the prosecution version that he was associated with the search and seizure. Similar is the statement of PW-11. Both these witnesses stated that they had not made any statement to the police. 5. There is no manner of doubt that even when independent witnesses turned hostile, the prosecution can rely on the statement of official witnesses. However, there is an important caveat that the statements of the official witnesses should be consistent and in case there are material contradictions in their statements then no reliance can be placed on the same. 6. The most important contradiction in this case goes to the very root of the matter. According to PW-13,Chain Singh after finding that the accused was carrying charas, he boarded down the accused from the bus. He has categorically stated that the driver and conductor were not involved in the search and seizure. The driver and conductor have denied that they made any statement to the police. The prosecution has confronted them with their statements recorded under Section 161 Cr.P.C and the same have also been exhibited. According to PW-14,Joginder Singh these statements were recorded by him after about 15 days. There is no explanation why their statements were not recorded that very day. Even, the independent witnesses PW-7 and PW-8 have not supported the prosecution version. According to PW-7 when he reached the spot the contraband was already in the hands of Constable Udho Ram. PW-8 has also stated that no charas was recovered from the possession of the accused in his presence and according to him the accused was not made to alight from the HRTC bus in his presence. 7. It stands proved from the material on record that PW-7 is working as a cook and cooks food for police officials, whereas PW-8 has a tea shop near the police post. Therefore, they can not said to be free from influence of the police officials. In such circumstances when there is material discrepancy in the statements of the official witnesses, no reliance can be placed on the same. 8. Another important aspect is that PW-13, Chain Singh, does not state that between the time when he opened the bag and found charas in it till the time PW-14 arrived at the spot, how he secured the bag and ensured nothing was put into the bag. 9. In view of the above discussion, we find no merit in this appeal, which is accordingly rejected. Bail bonds discharged. (Deepak Gupta) Judge (Rajiv Sharma) November 11, 2011 Judge (veena)