IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 416 of 1999. Date of decision: 19.8.2010 ________________________________________________________ State of H.P. Appellant Versus Veena Sharma and another Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting ? No For the appellant: Sh.Vivek Singh Thakur, Addl.A.G with Sh.Rajesh Mandhotra, Deputy Advocate General. For the respondent: Sh.M.L.Brakta, Advocate for respondent No.1. Mr.N.D.Sharma, counsel for respondent No.2. _____________________________________________________ Deepak Gupta, J.(Oral). This appeal by the State is directed against the judgment dated 31.5.1999 delivered by the learned Additional Sessions Judge, Shimla in Sessions Trial No.2-S/7 of 1999 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter, referred to as the ‘Act’). 2 2. The prosecution case, in brief, is that on 1.11.1998, PW/7 SI Ramesh Chand alongwith PW/1 Constable Budhi Singh and PW/2 Constable Jagdish Kumar and some other police officials was on patrolling duty at Tutu Bazar, Shimla. PW7 received secret information that accused Veena Sharma, owner of Shweta Tea Stall indulges in the trade of selling illicit liquor. PW/7 thereafter formed a raiding party. He associated therewith police officials and two independent witnesses namely Reiaz Ahmad and Lalit Tej Pal. According to the prosecution, thereafter, they went to the Shweta Tea Stall. On seeing the police officials, both the accused rushed to the upper storey of the tea stall. Accused Veena Sharma then took out a plastic container which was lying under the cot and handed over the same to co-accused Hira Singh. On this, the police officials apprehended the accused Hira Singh while he was trying to run away from the upper storey of the tea stall. The plastic container was opened and a polythene bag containing charas was recovered inside the container. The polythene bag was seized by the police and on checking, it was found to contain charas in the shape of ‘sticks’. PW/1 Budhi Singh was sent to bring the scale and weights. Thereafter, the 3 charas was weighed. On weighing, the charas was found to be 820 grams. Two samples of 25 grams each were taken out from the charas. The bulk charas and the samples were sealed in separate parcels with seal ‘S’ and the same were taken into possession vide recovery memo Ext.PW1/A. Ruqua, Ex.PW2/A was prepared and sent to Police Station, Shimla for registration of the case through PW/2 Jagdish Chand. Thereafter, PW/7 handed over the investigation to ASI Raj Kumar, PW/9. 3. According to PW/7, the police party reached the shop of the accused at 4.30 p.m., PW/9 arrived at 7.15 p.m. and the entire proceedings were completed by 10.15 p.m. On the basis of the evidence, challan was filed and the accused were charged for having committed the aforesaid offence. The accused pleaded not guilty and claimed trial. After trial, the accused were acquitted. Hence the present appeal by the State. 4. The learned Trial Court has acquitted the accused on various grounds but the main ground is that the prosecution has failed to prove that the contraband substance was recovered from the conscious possession of the accused. 4 5 We have gone through the evidence in detail. Only one independent witness Sh.Lalit Tej Pal (PW/5) was examined. This witness did not support the prosecution case and turned hostile. According to him, he was made to sign certain papers in the police station and nothing was done at Shweta Tea Stall in his presence. 6. The law is well settled that even if the prosecution witnesses turned hostile, the testimony has to be discarded and the Court can consider the testimony of the official witnesses. In case the testimony of the official witnesses is consistent and inspires confidence, conviction can be made on their testimony also. 7. In the present case, we are of the considered view that there are glaring contradictions in the statement of the official witnesses. The first thing which the prosecution is required to prove in a case under this Act is to show that the contraband was recovered from the conscious possession of the accused. The story set up by PW/7 is that the accused Hira Singh is an employee of Veena Sharma, accused. They both were sitting in the Shweta Tea Stall. When they saw the police approaching them, they both rushed to the upper storey of the tea stall. Then Veena Sharma, accused took out a plastic 5 container which was lying under the bed and handed over the same to the co-accused Hira Singh who tried to run away but he was apprehended by the police. 8. The version of PW/1 Budhi Singh is totally different. According to PW/1, when the raiding party entered the tea stall, it was the accused Hira Singh who on seeing the police climbed up to the roof of the shop and it was also Hira Singh who took out a plastic container from a shelf in the room above the Shweta Tea Stall and took out something from the container which was kept in a polythene bag and threw the same underneath the bed. Thereafter, ASI Ramesh Chand picked up the container as well as the polythene bag. 9. PW/2 Constable Jagdish Kumar gives a totally different version. According to PW/2, after the police party entered the tea stall, Ramesh Chand, SI (PW/7) offered to give search to the accused and it was only thereafter, the accused Veena Sharma climbed up to the upper storey and took out a plastic container which was lying underneath the cot. She thereafter handed over the same to Hira Singh, accused who tried to run away alongwith this container. 6 10. The version given in the original FIR is totally different. In the FIR, it is mentioned that after the police had searched the tea stall and were going towards the upper storey of the stall where a residence of Veena Sharma is situate then accused Veena Sharma ran into her room and took out a plastic container which was lying under her bed and handed over the same to her servant Hira Singh who tried to run away with the same. Thus, there are four different versions of the manner in which the recovery was made. When the statements of the official witnesses are inconsistent, no reliance can be placed on the same. 11. In view of the above discussion, it is apparent that the prosecution has miserably failed to prove that the contraband substance was recovered from the conscious possession of the accused. We find no merit in the appeal which is accordingly rejected. The bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge August 19, 2010 (Sanjay Karol) (m) Judge 7