IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.136 of 2001 Date of decision: 04.03.3011 State of H.P. ... Appellant Versus Lalman … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr.Vivek Singh Thakur, Additional Advocate General with Mr.Rajesh Mandhotra, Dy.A.G. For the respondents: Mr.Y.P.S. Dhaulta, Advocate. ____________________________________________________________ Deepak Gupta, J. (Oral) 1. This appeal by the State is directed against the judgment dated 20.10.2000 passed by the learned Additional Sessions Judge, Mandi, District Mandi, H.P. in Sessions Trial No.38 of 1999 whereby the accused has been acquitted of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter referred to as the Act). 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 2. The prosecution story, in brief, is that on 8.7.1999 at about 9 a.m. PW-10 Inspector Ram Swroop was on traffic checking and patrolling duty on National High Way No.21 near Badanu. He received secret information that accused Lalman, who has a shop at Gharyan, is in possession of charas in his shop. He thereafter associated PW-1 Jeet Ram and went to Gharyan. Accused Lalman was alone in his shop. He was told that his shop was to be searched because the police suspected that he had kept charas in the shop. The accused consented to get his shop searched in the presence of the Magistrate. Thereafter, the Magistrate was called for and PW-2 Partap Singh came to the spot. It is further the case of the prosecution that thereafter Ram Swroop carried out the search of the shop under the instructions of PW-2 Partap Singh. When PW-10 searched the shop he found one polythene bag hidden behind a bag containing soyabean. The polythene bag was yellow in colour and contained charas which on being weighed was found to be 4 k.g. 700 gms. Two samples of 40 grams each were drawn and both the samples and bulk charas were 3 sealed in three separate packets with seal ‘K’ and seal was handed over to PW-1 Jeet Ram. Ruqua Ext.PW-4/A was sent and accused was informed of the ground of arrest vide memo Ext.PW-3/A. Thereafter, special report Ext.PW-8/A was sent after PW-10 returned to the Police Station. One of the samples was sent for chemical examination and Chemical Analyst opined that it was a sample of charas vide report Ext.PW-10/A and thereafter challan was filed against the accused. 3. The learned trial Court acquitted the accused mainly on the ground that the provisions of Section 42 of the Act have not been complied with. 4. Acquittal on this ground may not be justified since the shop is a public place and the provisions of Section 42 would not be attracted and in such a case provisions of Section 43 would apply. However, after going through the entire evidence, we find that the prosecution has miserably failed to prove that the recovery was made in accordance with law. 5. The sole independent witness PW-1 Jeet Ram turned hostile. According to him, when he was having tea of the shop of Lalman accused, four persons came 4 there and one of them was carrying a blue coloured bag which he kept in the verandah of the shop. He was cross examined but stuck to his version. He admitted the signatures on the memo Ext.PW-1/A but denied that the shop was searched or any incriminating material recovered in his presence. 6. PW-2 Partap Singh is the Magistrate. According to him, when he reached the spot he inquired from Lalman as to who is the owner of the shop and the accused said he was the owner. He further states that a plastic bag containing charas was lying on the table of the shop and he asked the accused to whom the bag belongs and the accused stated that he does not know the name of the person. His version is totally different to that of the Investigating Officer who states that on the instructions of PW-2 he searched the shop and recovered the charas from a yellow polythene bag hidden behind a bag containing soyabean. These two versions do not tally with each other. PW-2 was not declared hostile and his statement has been accepted by the prosecution. If the search was conducted in the presence of the Magistrate then how was the 5 polythene bag lying on the table. The versions of PW-2 and PW-10 are totally contradictory. Whereas, the police officials state that the polythene bag containing the charas was kept behind the bag of soyabean, the Magistrate states that it was lying on the table. 7. Since the prosecution has miserably failed to prove how the recovery was made, the accused is entitled to be acquitted and the appeal is according dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. March 04, 2011 ( Sanjay Karol ), J. PV