IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 305 of 1997 Decided on: 26.8.2010 State of H.P. ..…Appellant Versus Kesari Lal. ..…Respondent Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 For the appellant : Mr. Rajinder Dogra, Addl. A.G. with Mr. Anil Jaswal, Dy. A.G. For the respondent : Ms. Monika Shukla, Advocate, vice Mr. Ashwani K. Sharma, Advocate. R.B. Misra,J. (Oral) 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 dated 1.10.1996, passed by learned Sessions Judge, Mandi, Kullu and Lahaul Spiti Districts at Mandi, H.P., in Sessions Trial No. 10/96, whereby accused- respondent has been acquitted for the offence, under Section 20 of the ND&PS Act, 1985. 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 2. According to the prosecution case on 28.11.1995, Sub Inspector Harbhajan Singh along with other Constables Ami Chand and Hukam Chand was on patrol duty towards Kataula when he received a secret information that accused- respondent has been dealing in Charas for the last so many days and would cross from that place after sometime with the Charas. The police party proceeded on-foot ahead on the road and found the accused-respondent coming from the other side who on seeing the police party tried to escape. However, he was over powered and he was made to know whether he wanted to be searched by police party or Magistrate or Gazetted Officer and on his agreeing to give his search to Sub Inspector Harbhajan Singh, on search 4 Kg and 350 grams of Charas was recovered. Two samples of 50 grams each were separated and sealed with seal of letter ‘G’ and the remaining bulk was also sealed with the same seal. The case property was taken into possession vide memo Ext. PA, which was also signed by the witnesses and the seal after its use was handed over to PW Neel Gagan. Accused was arrested and on investigation he was charged for offences under Section 20 of the ND&PS Act in terms of FIR Ext.PE against him and case was committed to the Sessions Court. 3. In order to prove its case, the prosecution examined PW-1 Chaman Lal, PW-2 Hukam Chand, PW-3 MHC Rajesh Kumar, PW-4 Mani Ram, PW-5 Prem Chand, Pw-6 Hukam Chand, PW-7 Harbhajan Singh and PW-8 Neel Gagan, whereas the accused through his statement under Section 313 Cr.P.C. denied the prosecution case. 3 4. PW-1 Chaman Lal and PW-8 Neel Gagan are stated to be independent witnesses but both of them have not supported the prosecution case. PW-1 Chaman Lal is from the village of the accused-respondent whereas PW-8 Neel Gagan was the driver of Maruti Van HP-02-2434, which was hired by the police party at the relevant time. PW-1 has very categorically stated that the accused-respondent was not caught by the police party in his presence and no search was made in his presence. PW-1 has further stated that police came to him in the morning of 28.11.1995 and has stated that they had caught some illicit liquor and asked him to become witness of the said recovery. As such, PW-1 agreed to put signature. As per testimony of PW-1 there are two tins of illicit liquor and he was taken by the police in the vehicle along with Kesari Lal where he put signatures on certain papers. He has further stated in cross- examination that he did not know as to what should be done in case his signatures were taken on a blank paper. 5. PW-8 Neel Gagan has stated that he was driver of Maruti van taxi No. HP-02-2434, which was hired by police. According to him, police met near village Nandli and PW-1 was near his vehicle along with police party. PW-8 further stated that neither any search was made in his presence nor any recovery was made. Both PW-1 and PW-8 have indicated to the extent that Maruti Van taxi of PW-8 was utilized by the police. Both the independent prosecution witnesses have stated that their signatures were obtained by the police at the police post. Both have also stated that the parcel Ext.PW1/A bears their signatures but these were obtained at police station. PW-1 4 Chaman Lal has specifically stated that he was threatened by the police. 6. PW-7 Harbhajan Singh, while supporting the prosecution case, has stated that when he went with the police party to village Nandli, he came across a person who on seeing the police party tried to escape and he shouted for him. However, he was overpowered and asked the identity of the said person. He disclosed his name as Kesari Lal. Neel Gagan and Chamal Lal simultaneously came there and in their presence accused exercised his option to be searched by the police party ad on search Charas was recovered from accused-respondent. In the cross-examination PW-7 has stated that he had left to the police station at 6.30 A.M. in the private truck and not in the private car and reached in village Kanand at about 10.30 A.M. PW-7 has specifically denied that he had taken the taxi of Neel Gagan PW-8. He has further denied that Neel Gagan was not accompanying them, whereas Neel Gagan PW-8 has stated otherwise saying that his Maruti van was used by the police officials. 7. PW-2 Hukam Chand Constable who was with Inspector Harbhajan Singh has also stated that Neel Gagan and Chaman Lal met them on the spot and he could not say whether Neel Gagan was the son of Head Constable whereas Harbhajan Singh has admitted in his cross-examination that Neel Gagan belong to Mandi. As per testimony of PW-2 they were in a truck, but none of the official witnesses have stated to whom the truck belonged. 5 8. In respect of search and recovery the two independent witnesses who said to have witnessed the same were declared hostile and were cross-examined by the prosecution. However, other police officials PW-2 and PW-7 have endeavour to support the prosecution case. In the absence of non-corroboration of the testimony of aforesaid witnesses, the testimony of the official witnesses have to be scrutinized carefully. On the scrutiny of these prosecution witnesses, we note that PW-8 was said to be belonged to district Mandi but no reason was assigned as to how he was present on the spot with Chaman Lal as claimed by the prosecution. The statement of Neel Gagan PW-8 cannot be ignored to the extent that police officials had engaged his taxi to go to village Kamand despite the fact that such facts have been totally denied by PWs- 2 and 7 as both of them have stated that they had gone to village Kamand in a truck but have not definitely describe about the identity of truck and its ownership. There may be, minor contradictions but two contradictory version emanating regarding the use of vehicle by the police officials. Both independent prosecution witnesses generally cannot be overlooked while having been declared hostile as both have vehemently stated that the accused-respondent had brought by police and they had put signatures on the blank papers. PW-7 Harbhajan Singh has stated that on their way to village Kamand they met CID personnel and they were informed by him that accused-respondent was about to across that side with Charas and it has also come in evidence that there were lot of inhibited houses and the police could have associated at least two persons 6 from the nearby locality to derive strength in their case. Non- association of any independent person from the locality and association of such persons, PW-8 being a resident of Mandi should also create doubt in the prosecution story. In the facts and circumstances, the official witnesses are not inspiring confidence. More so, in view of the facts and circumstances when two independent witnesses associated by the police have consistently stated that they have put signatures without knowing anything about the recovery or search of the accused- respondent. 9. On the scrutiny of material on record, prosecution witnesses and material contradictions learned Sessions Judge rightly arriving at the finding that the prosecution failed to prove its case beyond reasonable doubt. In our considered view, prosecution has failed to bring home the guilt of the accused- respondent. There is no scope of any interference with the judgment of the acquittal. Accordingly, the appeal being devoid of any merit is, therefore, dismissed. 10. Bail bonds, furnished by the accused-respondent, are hereby discharged. (R.B. Misra), Judge. August 26, 2010 (V.K. Sharma), Judge. (vs)