IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 301 of 1997 Date of decision: 26.08.2010 ____________________________________________________________ The State of H.P. .....Appellant. Versus Sant Ram .....Respondent. Coram The Hon'ble Mr. Justice R.B. Misra,J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? ____________________________________________________________ For the appellant: Mr. Rajinder Dogra, Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate, General. For the respondent: Mr. Chaman Negi, Advocate. R.B. Misra, J (Oral). 1. 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 and order dated 18.02.1997, passed by the learned Sessions Judge, Solan, District Solan, in Sessions Trial No. 1-S/7 of 1996, acquitting the alleged accused under Section 18 of the Narcotic Drugs and Psychotropic Substances Act,1985, in reference to FIR No. 187 of 1996. 2. Prosecution case in brief is that on 13.08.1996, accused-respondent was present at new bus stand, Saproon, 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... Solan, at about 10 p.m. and when he saw Ranjit Singh, Incharge, Police Post, Saproon, alongwith other members of the raiding party viz. Pawan Kumar, Paras Ram and Dayal Chand Constable No. 514 and tried to escape, however, he was overpowered by the police party. Accused was found carrying an envelop in his hand and he was informed that whether he is ready to be searched by the police party or by the Magistrate or by a Gazetted Officer. On his agreeing to search, a search was made and 500 grams of opium was recovered from a polythene. Two samples, each weighing 25 grams, were taken and sealed with seal, bearing mark 'Y', and the same were sent to the Chemical Examiner. Thereafter, FIR No. 187 of 1996, dated 13.08.1996, was registered against the accused- respondent. 3. In order to prove its case, prosecution examined as many as six witnesses, whereas, accused through his statement under Section 313 Cr.P.C. denied the prosecution case. 4.. On analysis of the prosecution witnesses and the material on record, we notice that the prosecution has relied upon the testimony of PW-6 ASI Ranjit Singh, PW-1 Pawan Kumar, PW-2 Paras Ram and PW-5 Constable Dayal Chand to establish that the contraband was recovered from the accused-respondent. As per the statement of PW-6 ASI Ranjit Singh, he constituted a raiding party at new bus stand, Saproon, Solan, and gave memo, Ex. PA, in writing to the accused-respondent, to exercise his option, whether he likes to be searched by a Magistrate or a Gazetted Officer and on his agreeing, search was made by ASI Ranjit Singh PW-6 the ...3... contraband was found being carried openly in the right hand of the accused-respondent, but, Pawan Kumar PW-1 did not support the prosecution case and has very categorically stated that the search was not made before him and nothing was recovered in his presence. In cross-examination also, he did not support the prosecution case. Paras Ram PW-2 has stated that the accused himself was carrying a polythene bag in his hand. The perusal of the statement of Shri Paras Ram gives an impression that the accused himself walked into the trap of the police raiding party headed by Shri Ranjit Singh (PW-6). However, testimony of PW-1 and PW-2 does not support the prosecution case. 5. Ex. PW-4/B reflects that on 13.08.1996, on receiving information, ASI Ranjit Singh has already formed a raiding party, comprising of police officials Pawan Kumar, Paras Ram and Dayal Chand, and apprehended the accused-respondent, whereas, the testimony of PW-2 indicates that they were not the part of the raiding party. PW-2 has very categorically stated that when he was taken by ASI, Saproon, towards the bus stand, the accused had been apprehended there. In view of the testimony of PW-2 three packets were sealed with seal 'AY'. Subsequently, he has stated that the packets were sealed with seal 'Y' and nothing was recovered from the pockets of the clothes worn at that time by the accused. Whereas, PW-3 Rajesh Kumar, Head Constable, has stated that on August 14, 1996, packets, sealed with stamp, bearing mark 'Y' were handed over to him by Sham Lal, Head Constable N. 73, which PW-3 entered into registered No. 19 and kept the same in ...4... malkhana, in proper custody and sent one sample on 16.08.1996 to CTL, Kandaghat, through Ram Lal and Ram Lal after handing over the same at CTL, Kandaghat, gave receipt to PW-3. However, neither Shri Ram Lal nor Shri Sham Lal have been examined by the prosecution. 6. In view of the testimony of PW-2, the seals were bearing mark 'AY', whereas, in view of the testimony of PW-3, seal was bearing mark 'Y'. PW-5 has also stated that the opium was sealed in three packets, bearing mark 'Y', however, in view of the testimony of PW-6 when the packets were deposited at the police station, there it were re-sealed with a stamp, the specimen of which are Ex. PW-6/F. However, it was not known what seal was put at that time and who had done this re-sealing, such person, was also not examined. 7. In view of the testimony of PW-2, accused was brought before the street light of main bus stand and when accused was being searched, PW-2 went to his shop for bringing scale and weights. The recovered contraband goods were weighed and two samples, each weighing 25 grams, were taken and three packets were sealed with seal 'AY'. Subsequently, PW-2 is also not consistent about the mark given on seal. In these circumstances, link evidence is also missing. 8. The two independent witnesses associated with the raiding party have resiled and have not supported the prosecution case. Other official prosecution witnesses are not inspiring confidence, therefore, in the facts and circumstances, on analysis ...5... of the prosecution witnesses and the material on record, learned Sessions Judge has rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, prosecution has failed to bring home the guilt against the accused-respondent and there is no scope of interference in the judgment of the trial court, as such appeal being devoid of merit is dismissed. (R.B. Misra) Judge (V.K. Sharma) Judge 26th August, 2010 (virender)