IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 39 of 2003. Date of Decision : 28.10.2011 State of Himachal Pradesh ….Appellant. Versus. Bhawani Dutt & another ….Respondents. Coram: Hon’ble Mr. Justice R. B. Misra, Judge Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?. For the Appellant : Mr. Rajinder Dogra, Addl. A.G. For the respondents : Mr. G.R. Palsara, Advocate with Ms. Leena Guleria, Advocate. Dev Darshan, J. (Oral). The State has challenged the acquittal of the respondents, who were charged for offence under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). 2. The case of the prosecution is that PW11 Brijesh Sood, Inspector, who was Incharge of P.P. City Mandi along with PW4 Keshar Singh, Head Constable, Sanjay Kumar, Head Constable, Constable Jatinder Kumar and Constable Suneel Kumar were present at Pulgharat when they were patrolling and on nakabandi duty. At about 4.45 P.M. one HRTC Bus No. HP- 42-0783, which was travelling from Kullu to Delhi was stopped by them and routine search of the passengers was made; accused Whether reporters of the Local papers are allowed to see the judgment? 2 were found sitting on seat Nos. 2 and 3 with one cotton bag kept by them in between these seats. On checking of this bag, he found clothes of brown and black colour and one woolen scraf (muffler). From the pockets of the black pant, two packets, one from each pocket of the black pant were recovered. Both were found to be containing black and round ‘tikies’ (cakes). Both the accused were ordered to get down along with the bags as also driver, conductor and passenger of seat No.10. The packets were opened and found to contain charas, which was weighed on scales and weights arranged from a nearby shop and was found to be 400 grams. Out of this, two samples of 20 grams each were taken out, put in two empty four square cigarette packets, which were sealed with seal “K” and residue charas was also sealed in separate parcel with same seal impression. The specimen of seal impression ‘K’ after its use was handed over to Anil Kumar ( who has not been examined), who was also present on the spot and had witnessed the search proceedings. The seal impression was exhibited as Ex.PW11/A. All the three parcels along with bag and other belongings were taken into possession vide seizure memo Ex.PW11/B which was signed by the accused and the witnesses. After completion of the other proceedings, the samples were sent to the CTL, Kandaghat for examination. 3. In cross-examination, PW11 Brijesh Sood says that he does not remember the number of the bus which he had checked on that day. He states that the checking was 3 conducted by the party in routine. He did not have any prior information regarding the fact that these two accused were transporting/were in possession of the contraband. He denied the suggestion that bag Ex.P7 was not recovered from the bus but admits that he does not know about the ownership of muffler (scarf) Ex.P2, pants Ex.P3 and P4. He further admits that he had not made any attempt to ascertain from the accused person as to who was owner of the muffler Ex.P2 and pants Ex.P3 and P4. He says that he did not obtain signatures of accused on parcels Ex.P5 and Ex.P6. This is the most important part of the cross- examination as it would be relevant to decide regarding the fact of conscious possession of the contraband by the accused. 4. Adverting to the other evidence on record, the prosecution, of course, corroborates the fact that the accused were in possession of the contraband. The other evidence consists of PW4 Keshar Singh, who at the relevant time was working as Head Constable and was in charge of the Police Post, Mandi he says that in the presence of passengers, conductor, driver of the bus and one local witness Anil Kumar, contraband was recovered from the accused and weighed after arranging scales. Contraband was found to be 400 grams charas. He corroborates the fact that the bag was kept in between seat Nos. 2 and 3 and that when the bag was opened it was found to contain one polythene bag, containing two pants and one muffler and from the pockets of the pant two polythene packets were 4 recovered, which were containing black material suspected to be charas. 5. We are now adverting to the evidence of the other two witnesses on record. PW1 is Hukam Chand, who was the driver of bus. To a certain extent he supported the prosecution case in his examination-in-chief. He was declared hostile when he says that he does not know how the packets etc., were prepared. In cross-examination he says that when the bus was stopped by the police party, he immediately stopped the bus and alighted. He went to the tea shop and did not participate in any of the recovery proceedings. He says that he noticed the police party coming out from the bus after 15 minutes from the time of their boarding. He did not notice any plastic bag with the police and all the passengers came out of the bus with the police party. He then says that he did not see the police party weighing the charas and preparing the sample packets. In examination-in- chief, he of course corroborates the fact that there was one polythene bag Ex.P1, muffler Ex.P2, black pant Ex.P3 and brown pant Ex.P4 in the bag. He could not identify the bag which was shown to him in the Court when he was in the witness box. PW2 Gurdial Singh is an independent witness who was supposed to be sitting on seat No.1. He has denied the occurrence totally. He says that at the relevant time he did not notice any activity going on as he had consumed liquor and was asleep under its influence. In cross-examination he is candid. He says that he takes liquor daily and passes out after taking excess liquor. 5 PW3 Sohan Lal was the conductor of the bus. He says that the bus was stopped by the police party, which boarded the bus and started checking the passengers. He has stated that he does not know what was recovered from the accused person. In cross- examination he says that when the police boarded the bus he asked them as to how much time they will take and thereafter he got down. He admits that most of the passengers were local, staff members and Govt. employees. There were only 13-14 passengers travelling to Delhi, out of whom 3-4 were army personnel. He admits that some of the passengers boarded another bus while the police was conducting the search of the other passengers and that at the relevant time he was issuing tickets to the passengers. The police did not ask the accused about the ownership of Ex.P1 to P4 and P-7. Neither he had made an attempt to ascertain about the ownership of the bags. This is the totality of evidence on record. 6. The learned Sessions Judge has acquitted the accused on two grounds (a) non compliance of provisions of Section 50 of the NDPS Act and (b) non-compliance of mandatory provisions of Section 42 of the NDPS Act. Adverting to these points, what we find is that the provisions of Section 50 of the NDPS Act are not applicable to the facts of the case since according to the prosecution the contraband was recovered from the bag. So far as the application of provisions of Section 42 of the NDPS Act are concerned, it is nobody’s case that the police 6 party had any prior information regarding transportation of the contraband by the accused. 7. Adverting to the evidence on record and submissions made on behalf of the prosecution, we find that the accused were not found in conscious possession of the contraband. This is for the reason that the three witnesses namely PW1 Hukam Chand, driver of the bus, PW2 Gurdial singh, who was an independent witness and PW3 Sohan lal, conductor of the bus have denied the recovery of the contraband from the possession of the accused in toto. We also find that Anil Kumar, who was the other local and independent witness and witnessed the entire process of recovery etc., has not been examined by the prosecution for reasons best known to it. 8. Learned Additional Advocate General urges that the evidence on record clinches all the issues and that no corroboration is required. We are unable to accept this submission as in the present facts and circumstances of the case especially having regard to the evidence on record, what we find is that the version of the prosecution is being rejected by the witnesses in toto. It is the version of two HRTC employees and one independent witnesses against that of the police which has to be considered by us and we have no reason to disbelieve their evidence as also when considered with the other evidence on record does not establish the case of the prosecution. We also notice that PW11 Brijesh Sood admits that he did not make any attempt to ascertain as to whom the bag, Ex.P1, muffler Ex. P2, 7 pants Ex.P3 and P4 belongs . He also did not try to ascertain the ownership of the bag. The driver Hukam Chand(PW1) and conductor Sohan Lal (PW3) are emphatic when they state that immediately after the bus was stopped they rushed out from the bus and went towards the tea shop and did not witness any proceeding. PW1 Hukam Chand also states in cross- examination that the luggage/items of the other passengers were lying all over in the bus and that his bedding was also lying there. In other words, his evidence is that he was not sure as to whether the bag belongs to the accused or not. In these circumstances, we are also of the view that the prosecution has been unable to establish on record that the accused were in conscious possession of bag, Ex.P1 which was containing muffler, Ex.P.2, pants Ex.P3 and P4 and from the pockets of one of the pants the contraband was recovered. We find no merit in this appeal which is accordingly dismissed. Bail bonds furnished by the accused/respondents are discharged. (R.B. Misra), Judge. (Dev Darshan Sud), Judge. 28th October, 2011. (jai)