HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.396 of 2000. Decided on: September 22, 2010. State of H.P. …Appellant. VERSUS Sita Ram ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the Appellant: Mr.R.K.Sharma, Sr.Addl.A.G. with Mr.Rajinder Dogra, Addl.A.G. For the respondent: Mr.Yoginder Singh vice counsel. R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 6th December, 1999, passed by learned Sessions Judge, Shimla, H.P., in Sessions Trial No.19-S/7 of 1999, acquitting the respondent/ accused under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). Whether the reporters of the local papers maybe allowed to see the judgment? …2… 2. The prosecution case, in brief, was that on 12.6.1999, ASI Madan Lal of C.I.A. Staff, Shimla, accompanied by HC Chet Ram and Constables Jagdish Chand, Parma Nand, Mahender Singh and Narainder Pal, went to village Kotidhar in connection with routine patrol duty, when they noticed two persons, one of whom was young and the other was middle aged, coming along a path. On seeing the police, both the persons became nervous. The middle aged man turned back and started running along the road leading to village Bekhalti while the young man escaped into the forest. The police gave a chase to the middle aged man and apprehended him. He was none else than the accused carrying a yellow coloured bag. Madan Lal (A.S.I.) told him that it was intended to search his person and that in case he so desired, search of his person could be made in the presence of some Gazetted Police Officer or a Magistrate and the respondent agreed that he was ready to be searched by the police officials present on the spot. In the meanwhile, a Maruti Van, bearing Registration No.HP-02-0039, came from Rest House side which was stopped by the police and the driver of that taxi, namely, Sant Ram and a passenger, namely, Kishori Lal, travelling by that taxi, were associated as independent witnesses. In the presence of those witnesses, a yellow coloured …3… bag, which the accused was carrying, was searched and Charas, in the form of fingers, was recovered and on weighment it was found to be 950 grams. Two samples each weighing 25 grams were separated. The samples and the rest of the Charas were put in three separate parcels and the parcels were sealed with seal impression ‘H’ and the case property i.e. the three sealed parcels containing the bulk Charas and the two samples was also sent to the Police Station through the same Constable along with the report. Case was formally registered on the basis of that report vide F.I.R. No.91 of 1999. The case property was deposited with MHC and he presented the same to the S.H.O. and the latter stitched those parcels into bags of cloth and sealed those bags with his own seal Ext.‘J2’. Inspector In-charge, C.I.A. staff, went to the spot and prepared the site plan. The case was investigated and the respondent / accused was charged for the aforesaid offence and the case was committed to the Sessions Court. 3. In order to prove its case, the prosecution has examined as many as seven witnesses, whereas, the respondent / accused, through his testimony under Section 313 Cr.P.C., has denied the prosecution case. …4… 4. PW-7, Assistant Sub Inspector, Madan Lal, who conducted the search, PW-1 Kishori Lal, one of the independent witnesses of the search and seizure, PW-2 Constable parma Nand, who also witnessed the search and seizure and then carried the report for the formal registration of the case and the case property to the Police Station, PW-3 MHC Gurdyal Singh, with whom the case property was deposited by PW-2 Parma Nand, PW-4 Constable Ramesh Chand, who carried the sample to the Chemical Laboratory, PW-5 Sub Inspector Jagdish Chand, who registered the case and put the three parcels into three separate cloth covers and sealed those covers with his seal ‘J2’ and PW-6 Inspector Shyam Lal, who went to the spot after the registration of the case and arrested the respondent / accused besides preparing the site plan and recording the statements of the witnesses under Section 161 of the Code of Criminal Procedure. 5. On analysis of the prosecution witnesses and materials on record, we notice that PW-1, Kishori Lal, PW-2 Parma Nand and PW-7 A.S.I. Madan Lal have endeavoured to support the prosecution case. PW-2 Parma Nand, a member of the police party, has deposed that the accused was commanded to halt and that when he stopped, he was apprehended and on associating independent …5… witnesses, the accused was searched and recovery of contraband goods were made. PW-7, A.S.I. Madan Lal, has deposed that the respondent / accused was apprehended and Sant Ram, driver of the taxi and a passenger travelling by that taxi, namely, Kishori Lal, were associated as independent witnesses and in their presence recovery of contraband goods was made. On such recovery, samples were sent to Police Station, Dhalli through Constable Parma Nand who further sent the same for chemical examination. 6. On scrutiny of prosecution witnesses i.e. PW-1, Kishori Lal, PW-2 Parma Nand and PW-7 A.S.I. Madan Lal, it appears that there is no consistency regarding the exact place where the police party was at the time of the spotting of the accused and also the manner in which the accused was apprehended. PW-7, A.S.I. Madan Lal, has stated that he and the other police officials were present at the house of Mathu Ram in village Kotidhar when the accused and a young man were seen coming from Bekhalti side but according to PW-2 Parma Nand, the respondent / accused was seen coming from Bekhalti side when the police party was still going towards Kotidhar. PW-1, Kishori Lal, has stated that the respondent / accused was apprehended by the police near a point where there is a rain shelter, 3 – 4 sheds, including a tea stall and 3 – 4 residential …6… houses, whereas, PW-2 Parma Nand has specifically denied that there is any shop, especially a tea stall or residential houses near the point where the respondent / accused was apprehended. Neither Kishori Lal (PW-1) nor Parma Nand (PW-2) corroborated the testimony of PW-7 ASI Madan Lal that besides the accused one more man, who looked young, was there and that on seeing the police he escaped into the forest. According to PW-1 Kishori Lal and PW-2 Parma Nand, the accused halted on being commanded by A.S.I. Madan Lal, but ASI Madan Lal (PW-7) himself has stated that the respondent / accused, on seeing the police, started running towards Bekhalti and that he was over-powered after a chase. As per testimony of PW-1, the recovered Charas was weighed at a nearby tea stall by means of scale and the weights available in that tea stall. According to ASI Madan Lal and Constable Parma Nand, the weights and scales were sent for from a shop at Mashobra and that a Constable went to fetch the scale and weights by the taxi, by which Kishori Lal (PW-1) was travelling. PW-1, Kishori Lal, in his cross examination, has further stated that he reached Kotidhar Dak Bangla around 1.30 or 1.45 PM and after staying there for one hour he started back and when the van reached village Kotidhar, the police got it stopped and …7… associated him as a witness. On the analysis of testimony of PW-1, Kishori Lal, we find that if the witness reached Dak Bangla at 1.30 or 1.45 PM and remained there for one hour, how could he be there on the spot at 2 PM when the respondent / accused was allegedly apprehended and the search of the bag, allegedly carried by him, was made, as such, PW-1 Kishori Lal appears to be a stock witness of the police, whereas, he has admitted in his cross examination, that he has appeared as a witness for the prosecution in one or two other cases of similar nature. In addition to the discrepancies and contradictions, pointed out above, there is one more important contradiction which is emanating from the testimony of ASI Madan Lal and Constable Parma Nand that ASI Madan Lal and the other members of the party travelled from Mashobra to Kotidhar on foot but A.S.I, Madan Lal (PW-7) has stated that the party travelled by a small-sized truck from Mashobra to a point about one furlong short of Kotidhar. 7. On scrutiny of the prosecution witnesses and materials on record and keeping in view the inconsistencies, contradictions and improbabilities, the learned Sessions Judge has rightly arrived at the findings that the prosecution has failed to prove its case beyond …8… reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope for interference in the impugned judgment and the criminal appeal, being devoid of any merit, is accordingly dismissed. 8. Bail bonds, furnished by the respondent, are hereby discharged. (R.B.Misra), J. September 22, 2010. (V.K.Sharma), J. (soni)