IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No.287 of 1997. Decided on : 20th August, 2010. State of H.P. … … Appellant. -versus- Sat Pal … … Respondent. Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? For the appellant : Mr. Rajinder Dogra, Addl. Advocate General and Mr. Anil Jaswal, Deputy Advocate General. For the Respondent : Mr. N.K. Thakur, Advocate. R.B. Misra, J. (oral): The present criminal appeal has come up for consideration after leave to appeal has been granted under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 1.11.1996, passed by the learned Additional Sessions Judge, Mandi, H.P., in Sessions Trial No.10 of 1996, acquitting the respondent-accused for the alleged offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short called as ‘the NDPS Act’). 2. The prosecution case is that on 2.12.1995, a secret telephonic information was received in Police Station at 8.30 p.m. that in Kullu-Chandigarh bus ‘Charas’ is being carried, as such, Dhian Singh, ASI informed Additional Superintendent of Police/Deputy Superintendent of Police and they constituted ------------------------------------------------------------------------------------------------------- Whether reporters of Local Papers may be allowed to see the Judgment? 2 2 Police team comprising of Harbans Singh, Dev Ram and Dharam Pal Constable. They went towards Barrier of Bindraban in a Government Jeep No.HP-33/2355 being driven by Nainu Ram. ASI Dhian Singh stopped the H.R.T.C. Bus No.HP-18-3553 and started checking. The accused sitting on seat No.40, was found to carry contraband goods and on inquiry he told his name as Sat Pal. The said Bus was taken to the Police Station and thereafter in the Police Station the police recovered and weighed the Charas. It was found 2 kilograms and 500 grams and after taking samples and putting in different packets the same were sent to Chemical Examiner. A case under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 was registered at Police Station, Sadar Mandi. After completion of the investigation, accused was challaned and case was committed to the Sessions Court. 3. In order to prove its case, prosecution examined as many as eleven witnesses. In his statement under Section 313 Cr.P.C., the accused has shown his innocence and has denied the prosecution case. 4. PW-1 Roop Chand, Driver has stated that on 2.12.1995, he was driving the above stated bus from Manali to Dehradun with one Shri Amarnath, Conductor of the bus at about 8.45 p.m. at Forest Barrier, Bindraban near Mandi, the police on search recovered ‘Bhang’ in the luggage of the accused-respondent. On direction of the police, he drove the bus to the Bus stand and thereafter to the Police Station. The accused-respondent was also taken to the Police Station. On opening of bag by the police, charas was recovered. 5. PW-2 Harbans Singh, Constable, PW-3 Mani Ram, PW-4 Suresh Kumar, PW-6 Hukam Singh, Additional M.H.C., PW-7 Rajesh 3 3 Kumar, PW-8 Dev Raj, PW-9 Prem Singh, PW-10 Ravinder Singh, Head Constable did their duties to the extent assigned to them. 6. PW-7 Rajesh Kumar deposed that on 3.12.1995, the bus was stopped and at that time Amar Nath was the conductor of the bus. PW-11 ASI Dhyan Singh, has recorded the FIR. 7. We have examined the prosecution witnesses and the material on record. The driver and conductor of the bus have not supported the prosecution the case. There is nothing on the record to show as to why the Driver and Conductor, who are the employees of the H.R.T.C. and official witnesses, will depose falsely against the prosecution or in favour of the accused, whereas there were 40 passengers in the bus besides driver and conductor, but none of them has been examined to prove the case. These two witnesses, i.e. driver and conductor have, therefore, not supported the prosecution case though the police team was having the prior information that contraband goods were being carried out in the bus on the date of incidence, as such they could have associated other independent witnesses from the area who could be more reliable. In so far as the link evidence in this case is concerned, the same also does not appear to be up to the mark. 8. PW-11 ASI Dhyan Singh has stated that sample was taken out from the recovered Charas and sealed with seal ‘Z’ separately. Though he has stated that the case property was deposited with MHC of Malkhana (PW-6 Addl. MHC, Hukam Singh), yet he has no where stated that seal impression was also deposited with him alongwith the case property. The record also reveals that the only parcel containing the bulk charas was produced by the Investigating Officer, PW-11 ASI Dhyan Singh before PW-10 Ravinder Singh, SHO for resealing. However, the two sample parcels were not produced for resealing to PW-10 Ravinder Singh. Similarly, PW-6 4 4 Hukam Singh Addl. MHC has also, nowhere, stated that the sample of the contraband and the specimen seal impression were also sent to the Laboratory for comparison. PW-3 Constable Mani Ram, who had taken the sample for analyses to Forensic Science Laboratory, Kandaghat, has also not stated that either specimen of the seal impression was handed over to him or he had deposited the same with the Laboratory. A perusal of the report Ext. PN, given by the Forensic Science Laboratory reveals that specimen of the seal was not affixed thereon. In such a situation, due to lack of credibility and link evidence, it cannot be safely concluded that sample analysed vide report Ext. PN is connected with bulk of charas allegedly recovered from the accused. 9. On scrutiny of the prosecution witnesses and material on record, we find that mandatory provisions of Section 50 of the ‘NDPS Act’ has not been complied with. In such circumstances, the prosecution case has vitiated. 10. In these circumstances, learned Additional Sessions Judge has rightly come to the conclusion that the prosecution has not been able to prove its case beyond reasonable doubt and in our considered view also, the prosecution has failed to bring home the guilt to the accused and for lack of compliance of mandatory provisions of Section 50 of NDPS Act, the case of prosecution is vitiated. Resultantly, the appeal fails, being devoid of any merit, as such the same is dismissed. ( R.B. Misra ) Judge (V.K. Sharma) August 20, 2010. Judge (mlg)