1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 475 of 2002 Decided on: August 18, 2011 State of HP …Appellant. VERSUS Randheer Singh @ Dheera ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Dev Darshan Sud, Judge Whether approved for reporting?1 For the Appellant: Mr. R.K. Sharma, Sr. Addl. AG with Mr. Rajinder Dogra, Addl.A.G. For the respondent: Mr. Virender Thakur, Advocate. 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 Code of Criminal procedure in reference to the judgment dated 4.5.2002 passed by learned Addl. Sessions Judge, Solan, District Solan, HP in Sessions Trial No. 25-S/7 of 2001 thereby acquitting the accused-respondent for the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act). Whether the reporters of the local papers maybe allowed to see the judgment? 2 2. In order to adjudicate the present criminal appeal, it is necessary to give the factual background of the case. On receiving secret information on 13.3.2001 that the accused-respondent was carrying contraband goods, PW9 SHO Vijay Kumar, P.S. Nalagarh with ASI Deva Nand, HC Paramjeet, HC Sewa Singh, Constable Jaswant Singh, Constable Narinder Singh, went near Export Park, Jharmajri. Thereafter, after recording the reasons of belief, Ext.PW3/A and sending the same to Dy.S.P., Nalagarh through Constable Narinder, PW9 associated two independent witnesses namely Hari Ram and Susheel Kumar, as members of raiding party and laid a ‘Naka’ near Export Park, Jharmajri. PW9 observed that a person along with a bag after seeing the police party tried to run away from the spot, however he was apprehended. On asking, he disclosed his name as Randhir Singh. On suspicion, the accused-respondent was informed by PW9 that whether he intends to be searched by a Magistrate or any Gazetted Officer or the raiding party itself. The accused-respondent gave his consent in writing vide memo, Ext.PW1/A, for being searched by the raiding party at the spot. In the meanwhile, Dy.S.P., Nalagarh also reached at the spot. The members of the raiding party were also searched by the accused-respondent. When the accused-respondent was searched, opium was recovered from the polythene bag carried by him, which was measured 950 grams. Two samples of 10 grams each were taken out from the recovered contraband and remaining opium was kept in a plastic jar. The samples of opium and remaining opium were sealed with a cloth 3 with seal impression ‘A’. Signatures of independent witnesses were also obtained on the requisite memos. The seal after use was handed over to independent witness namely Hari Ram. Ruka, Ext.PW4/A was sent to the Police Station Barotiwala through Constable Jaswant Singh and in reference to that, FIR was lodged. Samples of contraband goods were sent to CTL Kandaghat for chemical examination. After investigation, accused was charged for the aforesaid offence. 3. In order to prove its case, prosecution has examined as many as 12 witnesses, whereas the respondent-accused in his statement under section 313 Cr.P.C denied the prosecution case. 4. PW1 Hari Ram, who is stated to be an independent witness, has been declared as hostile as he has stated that no search, recovery and seizure proceedings took place in his presence. So much so, PW1 in his cross-examination stated that he was co-accused in three criminal cases. 5. PW2 Susheel Kumar, who is stated to be another independent witness, has also not supported the prosecution case as he was declared hostile. 6. PW3 Constable Narender Kumar, in support of prosecution case and in his official capacity, has stated that on receiving secret information, SHO had written reasons of belief and sent him along with the document containing reasons of belief to hand over the same to Dy.S.P., Nalagarh. When he was on the way, Dy.S.P. met him at Wood Barrier and he handed over the aforesaid document to Dy.S.P. In his cross-examination, PW3 stated that all members of 4 the patrolling party were standing near wood depot at place Bald Khad bridge, but he did not talk to SHO. No person came in his presence on the spot. No written proceedings took place in his presence. 7. PW4 Constable Jaswant Singh, in support of prosecution case and in his official capacity, stated that reasons of belief were sent to SHO through Constable Narender Kumar to Dy.S.P., Nalagarh and two independent witnesses were associated in the raiding party and on obtaining the consent of the accused-respondent, he was searched and the contraband goods were recovered from the polythene bag, carried on the right hand of the accused. On measurement, the opium was found to be 950 grams, out of which, two samples of 10 grams each were taken out. PW4 has stated in his cross-examination that he was also member of the patrolling party and was present at the spot when the recovery was made. He also stated that there were many shops where the search and seizure were made and no person was associated from Villages Bhurrawala and Jharmajri. However, many persons were present at Bhurrawala and Harmajri. PW-4 however did not divulge as to from where the weights and scales were arranged, who brought the same? and as to how the measurement of the contraband goods was carried out? 8. PW5 Constable Ved Parkash has stated that he has written Rapat No. 15, dated 13.3.2011, Ext.PW-5/A. 9. PW6 Head Constable Ram Phal has stated that he has written Rapat No. 7, dated 13.3.2001, Ext.PW-6/A. 5 10. PW7HC Neelam Kumar has stated that on 13.3.2001 SHO Vijay Kumar had given three parcels to Deva Nand and thereafter, Deva Nand deposited the same to him sealed with seal impression ‘A’. On 14.3.2001 he sent two parcels to CTL Kandaghat for chemical examination through Constable Sita Ram. PW7 further stated that he had sent only one parcel to the CTL Kandaghat. 11. PW8 Constable Sita Ram has stated that on 14.3.2001 one parcel was given to him by MHC Neelam Kumar to deposit the same in the CTL Kandaghat. Thereafter, he deposited the parcels in the CTL Kandaghat on the same day. 12. PW9 SHO Vijay Kumar has reiterated the prosecution version. However, PW9 could not divulge anything as to how the case property was kept in Malkhana? As to whether the sample parcels were re-sealed before sending the same to CTL Kandaghat? How many samples were sent? PW9 even could not indicate about preparation of NCB forms at the spot or subsequently. 13. PW10 Investigating Officer Deva Nand, stated to be present on 13.3.2001 at the spot along with SHO, where, SHO received a secret information about dealing of opium and charas, has stated that the reasons of belief were recorded and sent to Dy.S.P. Nalagarh through Constable Narinder Kumar. PW10 further stated that Hari Ram and Susheel Kumar were associated as members of the raiding party. Accused-respondent came near place Export Park Jharmajri at about 2.30 p.m. PW10 further stated that accused came at about 3.30 P.M., whereas PW9 has not stated as to what time the 6 accused-respondent came at the spot. As per PW10, after recovery of the contraband from the accused, two samples of 10 grams each were taken out, over which seal impression ‘A’ was put and the same impression was put on bulk of opium, so recovered. PW10 has not indicated that he was also present on the spot along with the raiding party and as to from which place weights and scales were arranged? How many samples were taken out from the recovered contraband? Where the case property was kept and whether any entry was made in the malkhana register? Nothing has been divulged about the preparation of the NCB forms at the spot. 14. PW11 Rakesh Aggarwal, Assistant Director National Police Academy Hyderabad, who was S.P. at the relevant time, has stated he had received the special report, Ext.PW10/D on 14.3.2001 at 10.0 a.m. in his office. 15. PW12 Dy.S.P. Mohinder Singh has stated that after search of the accused, opium was recovered from a polythene bag carrying by him and on measurement, it was found to be 950 grams. Out of recovered contraband, two samples of 10 grams each were taken out and remaining opium was sealed in a parcel with seal impression ‘A’. PW12 has put his signatures on the recovery memo. PW12 has also not divulged as to from where the weights and scales were arranged? Whether the sample parcels were resealed? Where the case property was kept? Nothing has been divulged by PW12, who was present on the spot during the process, that the NCB forms were filled-in at the spot or not. 7 16. On perusal of NCB forms, Ext.PW9/A, it appears that no facsimile seals have been put on it. There is no impression of seal and nothing is evident as to whether the sample parcels were re-sealed in absence of facsimile. There is no detailed indication about preparation of the NCB forms at the spot or subsequently. Nothing could be verified as to how many sample parcels were sent for chemical examination. Whether the report of chemical examiner was in respect of the contraband? The independent witness namely, Hari Ram, who is stated to be associated in the raiding party and to whom the seal after use was handed over, was declared hostile. Another independent witness namely Susheel Kumar was also declared hostile. Right from the beginning, the facts of search of the accused, recovery of the contraband, taking out samples and keeping the same at the Malkhana in the police station and sending the samples to CTL Kandaghat are not forming chain and. as such link evidence is missing. In view of the above analysis, a doubt is created regarding even the recovery of the contraband goods. 17. On the analysis of the prosecution witnesses and material on record and keeping in view the contradictions and inconsistencies, learned Addl. Sessions Judge has rightly arrived at finding that the prosecution has failed to prove its case beyond reasonable doubt and also failed to bring home the guilt. We find no scope for interference in the impugned judgment of the learned Addl. Sessions Judge. Therefore, the criminal appeal, being devoid of merits, is accordingly dismissed. 8 18. Bail bonds, furnished by the respondent/accused, are hereby discharged. (R.B.Misra), J. 18th August, 2011 (Dev Darshan Sud), J. (pankaj)