HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.M.P.(M) No.: 920 of 2008 Decided on: 22.10.2008 State of Himachal Pradesh ………Petitioner. Versus Koby Yona ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the petitioner: Mr.Rajesh Mandhotra, Deputy Advocate General. Per V.K. Ahuja, J: This is a petition filed by the State of H.P. under Section 378(3) of the Cr.P.C. against the judgment of the court of the learned Special Judge, Kullu (Sessions Judge), dated 19.6.2008, vide which the respondent was acquitted of the charge framed against him under Section 20 of the Narcotics and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). Briefly stated the facts of the case are that on 30.11.2005, PW Parshotam Dutt, the then Incharge of Police Post Manikaran, was present in connection with traffic checking and checking of hotels alongwith PW HHC Parkash Chander. They went to Teji Paying Guest House at Kasol and checked room No.103 in the presence of two witnesses and on checking they recovered a polythene bag kept inside the room by the respondent, who was staying in the room. Out of the recovered charas weighing 400 grams, 2 samples of 25 grams ______________________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - each were taken by the police and these were sealed at the spot. The memo was sent to the police station and the investigation was conducted. After investigation, the challan was filed as against the respondent. The respondent was tried by the learned trial Court leading to his acquittal. The present petition under Section 378(3) of the Cr.P.C. has been filed by the State of H.P. for grant of leave to appeal against the impugned judgment of acquittal recorded by the learned trial Court. We have heard the learned Deputy Advocate General for the petitioner and have gone through the record of the case. On appraisal of the record of the case, it is clear that PW-3 Parshotam Dutt, the then Incharge Police Post Manikaran, had gone towards Kasol for traffic checking and checking of hotels around 5.00 a.m. PW-3 Parshotam Dutt has stated that they left for Kasol at about 5.00 a.m. He stated that they stopped at 2-3 places for traffic checking and conducted traffic checking also. He stated that they reached Kasol around 7.30 a.m. and checked some hotels. They entered the campus of Teji Paying Guest House around 10.00 a.m., informed the hotel owner Mr.Teji of his intention to check the hotel and went straight to room No.103 on second floor and also associated Paras Ram, waiter, at that time. The other witness to this raid and the police official accompanying PW-3 was PW-1 Chander Parkash, who stated that they reached the Guest House at 10.00 a.m. at Kasol. Thereafter, they went to the second storey of the Guest House at 10.15 a.m. and knocked the door of room No.103. He also stated that they left the Police Post at 5.00 a.m. and the distance from where they proceeded and Kasol was 4 kms. He also stated that they reached at Kasol at 5.20 a.m. and they came on motor cycle. At Kasol, Dy.S.P. was present alongwith 14/15 police officials and on the direction of the Dy.S.P., they went to - 3 - Tenzin Paying Guest House. He also stated that they went to the Guest House around 5.30 a.m. where owner Tej Singh was present. He also stated that the police party headed by the Dy.S.P. was on duty right from 5.30 a.m. till 10.00 a.m. outside the hotel. The learned trial Court has referred to this contradiction that when the police was already at Kasol and had reached at Kasol at 5.20 a.m. and only checked one Guest House, how it is possible that the police kept on sitting at Kasol or in the Guest House of Tej Singh for about 3-1/2 hours and searched the room of respondent at 10.15 a.m. only. There is no plausible explanation as to why the room was not checked immediately on reaching the hotel, particularly, the manner in which the police party had not checked the other rooms but proceeded straightly to room No.103 where the respondent was staying suggests that they had some prior information that charas can be recovered from this room and, therefore, this has been rightly taken by the learned trial Court as a major contradiction in the statements of two police officials, who were the members of the raiding party. Apart from the above, the police had also associated PW-2 Paras Ram, Waiter in the Guest House, who has stated that they were called to Police Post Manikaran alongwith the owner of the Guest House Tej Singh and his son and they went there alongwith the record of the Hotel. He did not state about any search having been conducted or the recoveries effected from the room where the accused was staying . He was declared as hostile by the prosecution and was subjected to detailed cross examination but nothing came up to hold that he has deposed falsely in favour of the respondent. The owner of the Guest House Tej Singh has been examined as PW-7 who has also stated similarly that a Police Constable came and enquired about - 4 - some foreigner and he was told to come to the Police Post Manikaran alongwith the register. He went there alongwith his son and Waiter Paras Ram and handed over the photocopy of the register to the police. He admitted in cross examination that at 7.30 a.m., the respondent alongwith other persons had told them that they were going to take bath at Manikaran and had left the Guest House at 7.30 a.m. This clearly suggests that when the police party allegedly checked room No.103 at 10.15 a.m, the respondent was not present in the said room. Surprisingly, this witness was not declared as hostile and was not subjected to cross examination by the learned Public Prosecutor for the State. He was not declared hostile which suggests that the prosecution has accepted his version as correct and therefore, he was not confronted with his statement recorded by the police. The son of the owner, namely, Chetan was given up by the prosecution as having been won over by the accused. Thus, there are major contradictions in the prosecution story, which has not been corroborated by two independent witnesses examined by it. Apart from the above, there are two other reasons for refusing the leave to appeal. The first reason is that a Division Bench of this Court had held in Criminal Appeal No.491 of 2003, titled Dharam Pal vs. State of H.P., decided on 15.5.2007, wherein it was held that in the case of charas, the actual quantity can be said to be the contents of the resin found in the charas by the expert. In the present case, the charas recovered was 400 grams and according to the report of the Chemical Examiner, the resin contained was 37.40% only, which shows that the charas recovered can be said to be 149.6 grams, which is less than 200 grams. The respondent is a foreigner and local address is not on record and it may not be possible to secure his presence in the absence of his local address being available on the record. - 5 - Therefore, keeping in view the contradictions in the statements of the witnesses and the final conclusion arrived at by the learned trial Court and other factors, as mentioned above, no useful purpose will be served in granting leave to appeal to the State of H.P. and as such, the petition is rejected. (Deepak Gupta), Judge. October 22, 2008. (V.K. Ahuja), (TILAK) Judge.