HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.638 of 1996. Decided on: September 17, 2010. State of H.P. …Appellant. VERSUS Munna Lal ….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.Ajeet Saklani, Amicus-Curiae. R.B.Misra, Judge (Oral) Mr.Ajeet Saklani has been requested to assist this Court as amicus-curiae and he has agreed for the same. The documents are being provided to him. 2. 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 19th June, 1996, passed by learned Additional Sessions Judge, Shimla, H.P., in Sessions Trial Whether the reporters of the local papers maybe allowed to see the judgment? …2… No.10-S/7 of 1992, thereby acquitting the respondent / accused under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). 3. The prosecution case, in brief, was that on 20.12.1991 at about 5 P.M., PW-8 Govind Ram, Inspector – S.H.O., Police Station, Sadar, Shimla, while on routine patrol duty, was proceeding from Police Station, Sadar towards Chhota Shimla via Bye-Pass Road along with one A.S.I. and four constables and when the police party was approaching Darni Bagicha, PW-8 associated PW-1 Kishori Lal, son of Sant Ram and PW-7 Kishori Lal, son of Narian Dass. After covering some distance, the police party noticed the respondent / accused coming from the opposite side. On seeing the police, the respondent / accused got scared and tried to escape, as such, on suspicion, he was over powered by the police. The respondent was given an option of his personal search before a Gazetted Officer or by the police party present on the spot for which the respondent had agreed of his search by the police party, headed by PW-8. PW-8 had offered himself for search by the witnesses and nothing incriminating had been recovered from the person of PW-8. PW-8, in presence of witnesses, PW-1, PW-7 and other police officials, searched the …3… person of respondent and 1700 grams opium Ext.P-2 was recovered from the bag Ext.P-1 being carried by the respondent / accused. Two samples of 25 grams each were taken by the police for analysis by the Chemical Examiner. The sample packets and the rest of the opium was duly sealed with seal ‘YR’ and had been taken into possession vide recovery memo Ext.PW-1/A. The sample packets of opium were sent for Chemical Examination and vide report Ext.PX, the respondent / accused was said to have been carrying opium. After investigation, the respondent / accused was charged for the aforesaid offence and the case was committed to the Sessions Court. 4. In order to prove its case, the prosecution has examined as many as eight witnesses, whereas, the respondent / accused, through his testimony under Section 313 Cr.P.C., has denied the prosecution case. 5. On analysis of the prosecution witnesses and materials on record, we find that PW-1 Kishori Lal, son of Sant Ram and PW-7 Kishori Lal, son of Narian Dass, on 20.12.1991 at about 5 P.M., said to be associated by the police, while making recovery, were not actually found to be present because PW-1, in his cross examination, has admitted that he was summoned to the Police Station on the next day i.e. 21.12.1995 of the alleged recovery and he was asked …4… to put his signatures on 2 – 3 documents. PW-1 could not differentiate between documents signed by him on 20.12.1991 at the spot and on 21.12.1991 at the Police Station. Had PW-1 been present on the spot on 20.12.1991 at about 5 P.M. in the area of Darni Bagicha and had he put signatures at the relevant time on the spot then there was no occasion for the police to call him to the Police Station on the next day and obtain his signatures on 2 – 3 documents. 6. PW-7 Kishori Lal, son of Narian Dass, had not stated the recovery of opium from the possession of the respondent / accused on 20.12.1991. In his chief examination, PW-1 has stated that the police had recovered opium from the possession of the respondent / accused on 20.2.1991 between 4 – 5 P.M. in the area of Krishna Nagar Bye-Pass. In his cross examination, PW-7 had reiterated that the recovery in question had been made on 20.2.1991 and it is pertinent to note that PW-7 was examined after about five years of the event, as such, he was not expected to recall the event with mathematical accuracy. PW-7 has also not indicated in his testimony that if the option of search was given to the respondent that whether he agree to be searched by the Police party present …5… on the spot or before a Gazetted Officer or a Magistrate. 7. PW-2, Babu Ram, has stated that the documents in question were prepared with the help of street light, whereas, PW-7 had nowhere stated that after seeing the police, the respondent / accused had felt scared and had tried to escape. The evidence of PW-7 is in conflict with the evidence of PW-1, PW-2 and PW-8, as such, contradictory version is emanating from the testimony of PW-7. 8. PW-1 has further stated that the seal ‘YR’, used in sealing the case property, had not been entrusted to any one. In the report Ext.PW-5/A, it has been stated that the seal ‘YR’ had been entrusted to PW-1, Kishori Lal. The parentage of PW Kishori Lal, who stood entrusted with the seal, had not been noted down in report Ext.PW-5/A. PW-7 had not whispered at all regarding entrustment of seal to him. Apparently, PW-8 Govind Ram, Inspector / S.H.O., had retained the seal ‘YR’ with him even though in report Ext.PW-5/A it had not been indicated that the seal stood entrusted to non-official witness. In his cross examination, PW-8 has admitted that he had not sent the sealed packet of the sample to the Chemical Examiner. PW-3, MHC Narian Singh, had received the case …6… property from PW-8 at the Police Station. PW-3 had prepared CFSL form and had affixed seal impression ‘YR’ with which the case property stood sealed by PW-8 on 20.12.1991. In these circumstances, the possibility of tampering with the case property cannot be ruled out. Since the seal used in sealing the case property had been retained by the police, the evidentiary value of non-official witnesses could not be said to be reliable. 9. From the perusal of testimony of prosecution witnesses, we notice that before making personal search of the respondent / accused and at that time PW-8, Inspector / S.H.O. Govind Ram, vide Ext.PW-1/B, has also apprised the respondent / accused that he is to be searched in respect of the recovery of opium, as such, PW-8 was having prior information that the respondent was carrying opium / contraband goods. From the perusal of Ext.PW-1/B, it also appears that before making the search, the respondent / accused was only asked for being agreed whether he wants to be searched by the police officer PW-8 himself or some other Gazetted Officer or a Magistrate. At that stage, the respondent / accused was not apprised that he has a legal right to be searched before a Gazetted Officer or a Magistrate. In these circumstances, in our considered view the bag of respondent / …7… accused was searched later on after making his personal search and in such situation, the requirement of Section 50 of the NDPS Act was to be complied with. In the present case, in our opinion, the provisions of Section 50 of the NDPS Act have not been complied with. In view of the contradictions, as have been noticed by the learned Sessions Judge and have also been indicated above, the tampering of the case property cannot be ruled out and for non-compliance of mandatory provisions of Section 50 of the NDPS Act, the case of the prosecution cannot be said to have proved beyond reasonable doubt. 10. On analysis of the testimonies of prosecution witnesses, materials on record and keeping in view the facts and circumstances of the case, the learned Additional Sessions Judge has rightly come to the conclusion that the prosecution has failed to prove its case beyond 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. 11. Bail bonds, furnished by the respondent, are hereby discharged. …8… 12. Before parting with the judgment, we wish to give our words of appreciation to Mr.Ajeet Saklani, Advocate for rendering assistance as amicus curiae. (R.B.Misra), J. September 17, 2010. (V.K.Sharma), J. (soni)