IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 447 of 2001 Decided on: 2.5.2011 State of H.P. ..…Petitioner. Versus Harish Kumar …… Respondents. Coram The Hon’ble Mr. Justice R.B Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr R.K Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For respondents : Mr. Y. Paul, Advocate. R.B Misra, Judge (Oral) The present criminal appeal has come up for consideration after leave to appeal has been granted under Section 378 (3) of Cr. P.C against the judgment passed by Additional Sessions Judge, Mandi in Sessions trial No. 16 of 1998 dated 27-1-2001, acquitting the respondent/accused for the offence under Section 20 of Narcotics Drug and Psychotropic substance Act 1985, in respect of alleged recovery of 250 grams of charas on 3-1-1998. 2. The prosecution case in brief is that on 3-1-1998, ASI Dhyan Singh along with Head Constable Biri Singh, HC Hari Ram, Constable Natha Singh, Constable Bhuri Singh , Constable Dalar 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 Khan and lady Head Constable Santosh Kumar was present at Bhagwan Mohalla in connection with investigation of case FIR No. 12/98 under Sections 457, 380 and 342 of IPC, then at about 1.30 p.m. accused/respondent made a disclosure statement in presence of independent witnesses Tilak Chand, Dharampal Kapoor and Devi Nand Malhotra. Search was made and 64 sticks of charas kept in a plastic envelope in sheet box were recovered which on weighing was found to be 250 grams. Two samples each of 10 grams were separated and put into a separate packet. Both samples packets were sealed with seal impression “K”. Seal impression was also taken on cloth. After investigation the accused/respondent was charged for the aforesaid offences. 3. In order to prove its case, prosecution examined as many as 19 witnesses, whereas accused in his statement under Section 313 of Cr. P.C denied the case of the prosecution. 4. PW-1 Tilak Chand stated to be independent witness of the recovery has not supported the prosecution case. According to him no search/recovery was made in his presence and he does not remember from whose house/room, incriminating article was recovered. As such, he was declared hostile. 5. PW-2 Dharampal, another independent witness of the recovery, has deposed that during the course of search, tin box kept in the lower storey was also searched and black coloured article was recovered but he did not remember what that black article was? PW- 2 also did not remember the weight of recovered articles and number of samples prepared, however he has admitted his signature on recovery memo, Ex. PW-1/A. In cross-examination 3 PW-2 stated that stolen articles were recovered from the house and those articles were brought in the Court, however, he was not aware to whom that portion of house belongs where such recovery was effected. 6. PW-3 Shallu made available the seal and weights to the police on 3.1.1998 at about 1.30 p.m. 7. PW-4 Prakash has not supported the prosecution case as he has deposed that he had come to mandi to collect the payment from Gopal Gujrati and thereafter he left for Delhi and he never met accused as no deal took place between him and accused. 8. Another independent witness of the prosecution is Sarat Chand (PW-14) . As per testimony of PW-14 he did not remember whether any other contraband good was recovered except the recovery of stolen articles. In his testimony made in cross-examination PW-14 has stated that when he reached the house of the accused, stolen articles were lying in the courtyard and number of persons had gathered there. He further stated that where accused reside is multi room building in occupation of many family and he signed the papers with regard to theft case and was not aware about any black colored article having been recovered. 9. It has come on record from the testimony of prosecution witnesses that recovery of charas alleged to have been made from the Courtyard of the huge building in which number of families were residing. From the chemical examiner report, Ex. PX, it appears that sample of 10 grams Charas was sent for chemical examination, whereas, the weight which was said to be 4 available for test in the chemical lab was 8.3823 grams. More so, Ex. PX, also reveals that seals K & A have not been put up on all, whereas, the sample was available on a piece of cloth which also creates doubts on the chemical examiner report. 10. PW-5 Hari Ram has also not indicated about the presence of persons on the spot. PW-6 Bhuri Singh has stated that he got the scale and weights from the shop of Shallu Ram and handed over the same to Investigating Officer. As per testimony of PW-6 Shallu Kumar did not accompany him to the spot and after weighing he returned the scale and weights to Shallu Kumar. Thus, there appears contradiction in the testimony of PW-5 and PW-6 regarding presence of Shop Keeper at the time of weighment of the incriminating articles. Shri. Sanjeev (PW-16) has not supported the case of the prosecution. PW-18 Dhyan Singh/Investigating Officer has stated that there was no information regarding charas and when building was searched, consisting number of rooms, he recorded the statement of father of the accused that the house belongs to accused, as nothing is emanating from the testimony of PW-18. The building, where search was made was belonging to number of persons and it is not proved that room from where recovery of alleged contraband good was made was belonging to the accused alone. We also did not find anything from the prosecution case to indicate that the recovery of contraband was made from the exclusive and conscious possession of the accused. As per version of PW-18 room was identified by the father of the accused but father of the accused was not examined to establish to indicate that the room actually belonged to accused/respondent. 5 11. From the perusal of prosecution evidence and the materials available on record, entire exercise of the prosecution endeavoring to prove its case was not conclusive to prove its case beyond all reasonable doubt. The entire witnesses have not supported the prosecution case. Independent witnesses have also not supported the prosecution case, whereas, the prosecution witnesses and other official witnesses have failed to prove that the recovery of contraband good was made from the exclusive and conscious possession of the accused/respondent, so much so, when owner of the building was also doubtful. 12. In these facts and circumstances, there is no scope of interfering in the findings arrived at by the learned Sessions Judge. In our considered view the prosecution has failed to prove its case beyond all reasonable doubt and also failed to bring home the guilt to the accused. Hence, present appeal is dismissed being devoid of merit. Bail bonds of the accused/respondents are discharged. (R.B Misra), Judge. May 2nd, 2011. (V.K Sharma), Judge. (priti)