IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.280 of 1997 Date of decision:17.9.2010 State of H.P. ... Appellant Versus Ali Mohd. … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr.Rajesh Mandhotra, Dy.Advocate General. For the respondent: Mr.Vikram Thakur, Advocate vice Mr.Vijay Thakur, Advocate. ____________________________________________________________ Deepak Gupta, J (Oral). This appeal by the State is directed against the judgment dated 14.2.1997 passed by the learned Sessions Judge, Chamba Division, Chamba, in Sessions Case No.35 of 1995 whereby the accused has been acquitted of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic substances Act, 1985 (hereinafter referred to as the Act). The prosecution story, in brief, is that on 30.1.1995 at about 10 a.m. PW-8 Inspector Ramesh Pathania along with Head Constable Krishan Gopal, HC Ranjeet Singh, HC 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 Mahinder Pal Singh, Constable Kuldeep Singh, Const. Gajinder Singh and Const. Madan Lal were present at Tunnuhatti Forest Check Post in connection with investigation of another NDPS case registered with Police Station, Dalhousie as FIR No.31 of 1995. The accused was seen coming on foot from Chamba side towards the Barrier. On seeing the police party he tried to rush back. This aroused the suspicion of the police officials who apprehended the accused. He was asked to disclose his identity. On questioning, he could not give any clear-cut explanation as to why he was coming towards Tunnuhatti side. Therefore, it was felt that he should be searched. An option was given to him of being searched either before the police officials or before a gazetted officer or Magistrate. He agreed to be searched before the police party. On his personal search a leather bag was found concealed under his pants. Inside this leather bag there was a sky coloured polythene bag and in this bag charas had been kept. This charas on being weighed was found to be 750 gms. One sample of 10 gms. was drawn from the bulk charas and thereafter the bulk charas and sample were both sealed with seal ‘T’. The contraband was taken into possession vide seizure memo Ext.PF. Seal 3 impression Ext.PH was prepared on the spot. The accused was apprised of the grounds of arrest and thereafter arrested. Other codal formalities were completed at the spot. The sample was sent to the Chemical Examination for analysis who vide his report Ext. PM opined that the sample was of charas and on this basis challan was filed in the Court. The learned trial Court acquitted the accused on the ground that the recovery had not been proved in a proper manner and there were material contradictions in the statements of the police officials themselves and that the independent witnesses have not at all supported the prosecution version. We have heard learned Deputy Advocate General on behalf of the State and have gone through the record. At the outset, we may note that the police case as set out in the statement of PW-8 Inspector Ramesh Pathania as well as in the documents which were prepared on the spot is that they were present at Tunnuhatti Forest Check Post in connection with the investigation of a case registered under FIR No.31 of 1995. However, during examination other than the bald statement of PW-8 no other material in this regard has been placed on record. PW-1 Constable Madan Lal is 4 the only other police official forming part of the raiding party who has been examined in Court. He contradicts the version of PW-8 and the prosecution. According to him, they were present at Tunnuhatti Forest Check Post in connection with routine patrol duty. This is a material contradiction between the statement of PW Ramesh Pathania and Constable Madan Lal. The second material contradiction between these two witnesses is that whereas according to Sh.Ramesh Pathania the accused was coming from Chamba side who on seeing the police tried to run back towards Chamba and this aroused the suspicion of the police party, Constable Madan Lal has not spoken a single word in this regard. His statement is that accused was seen coming from Nainikhad side and he was suspected of possessing charas. The independent witnesses have not at all supported the prosecution version. The two independent witnesses are PW-6 Ashok Pathania who is a taxi driver by profession. According to him by the time he was called the police party had already recovered 7 k.g. 500 gms. of charas but according to him this was not recovered from the accused. He was declared hostile and subjected to 5 detailed cross examination. In cross examination, he stated that his earlier statement that 7 k.g. 500 gms. of charas was recovered from the accused was incorrect and only 750 gms. of charas was recovered from the accused. He however denied that any consent was obtained from the accused before conducting his search. He in cross examination again stated that nothing was recovered from the possession of the accused in his presence. The other independent witness PW-7 Tek Chand is a Forest Guard. According to him, the police had recovered two parcels of charas from a DTC bus bound for Delhi but nobody was apprehended along with the parcels. According to him, the accused was not apprehended at the relevant time and he saw him for the first time in the Court. He further stated that the amount of charas recovered by the police was not 750 gms. but 4 k.g. 500 gms. He has admitted his signatures on various documents but according to him these documents had already been filled in and he was just asked to sign the same. In this case we find that there are material contradictions between the statements of the police 6 officials and the independent witnesses have not at all supported the prosecution version. Therefore, the learned trial Court was justified in acquitting the accused. We find no merit in the appeal which is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. September 17, 2010 ( Sanjay Karol ), J. PV