IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 674 of 2001 Reserved on: 26th May, 2011 Decided on: 14th July, 2011 State of H.P. ..…Appellant Versus Smt.Bhagi . ..…Respondent Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1 No. For the appellant : Mr. R.K. Sharma, Senior Addl. A.G. For the respondents: Mr.O.P.Sharma, Sr. Advocate, with Mr. K.R.Kashyap, Advocate. Justice Sanjay Karol,J. (Oral) For an offence, which is alleged to have been committed on 29.10.2000, accused was put to trial. In terms of judgment dated 17th July, 2001, passed by learned Sessions Judge, Kullu, in Sessions Trial No. 15/2001 titled as State of H.P. Vs. Smt. Bhagi, accused stands acquitted of the charged offence. 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 2. It is the case of the prosecution that on 29th October, 2000 ASI Vikas (PW-9) alongwith H.C. Sandeep Kumar (PW-2), Lady Constable Haradei (PW-3) C. Uttam Singh (PW-4) and C. Pune Ram were on the patrol duty. They proceeded towards Faryadi. The vehicle was being driven by Khem Chand. At about 6.30 p.m. they parked the vehicle near Faryadi Mod and started walking towards Bathahar. After walking for about 5-6 steps, they saw a middle aged lady coming from opposite direction. Seeing the police party she turned back and started walking briskly. PW-9 and PW-3 overpowered her. She revealed her name to be accused Bhagi. She was carrying a polythene envelope in her hand. She was suspected of carrying a contraband substance. C. Pune Ram was asked to call local witnesses from the neighbourhood, but, however, since none was found, accused was apprised of the apprehension and her right to be served in the presence of Executive Magistrate or Gazetted Officer or police officials present at the spot vide memo Ext. PW-2/A. Accused agreed to be searched by the police officer present on the spot. Accordingly she was searched. From the packet contraband substance which looked like charas was recovered. The same was weighed and found to be of 500 gms. PW-9 took three samples of 25 gms. each from the packet and sealed it with seal impression ‘A’. The remaining parcel was also sealed with the same seal. The seal was handed over to C. Sandeep 3 Kumar (PW-2) and NCB form filled in triplicate on the spot. Rukka (Ext.PW-9/C) was sent through C. Uttam Singh (PW-4) to the Police Station, Banjar, where FIR No. 79/2000 (Ext.PW-5/A) dated 29.10.2000 was registered. Codal formalities were completed on the spot and investigation file alongwith custody of the accused who was arrested and the sealed samples were handed over to S.I. Sanjay Sharma, SHO (PW-8), who re-sealed the same with his own seal impression ‘T’ and deposited the same with MHC Mohan Lal (PW- 5). Sealed samples were sent to the CTL Laboratory by C.Vijay Kumar, who obtained the Chemical Examiner’s report (Ext.PW-8/C), which revealed the contraband substance to be Charas. 3. With the completion of investigation, challan was presented in the Court for trial. Accused was charged for having committed an offence punishable under Section 20 of the Narcotic Drugs, Psychotropic Substances Act, 1985 (hereinafter referred to as the Act), to which she pleaded not guilty and claimed trial. 4. In order to prove its case, prosecution examined nine witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded. In defence accused examined two witnesses. 5. The Court below acquitted the accused of the charged offence for the reason that no independent witness was associated at the time of search and seizure of contraband substance and also 4 the testimony of the police witnesses did not inspire confidence, hence the present appeal. 6. It is the case of the prosecution that ASI Vikas (PW-9) was on petrol duty alongwith other police officials. Except for the bald testimony of the police witnesses, there is no corroborative documentary evidence to show that in fact police officials had left the Police Station on patrol duty at the relevant time. This fact by itself may not be fatal but raises doubt. 7. According to PW-9 when they had stopped the vehicle and seen the accused turn around and briskly walk away, they suspected her of carrying contraband substance and accordingly, after apprehending her, asked C. Pune Ram to get some independent witnesses. Now Pune Ram has not been examined in the Court. Why so? Has not been explained. It is true that other police officials present at the spot have deposed in favour of the prosecution but further testimony of C. Pune Ram was absolutely imperative, important and significant for the simple reason that in this case testimony of police officials does not inspire confidence being contrary in nature and non-association of independent witnesses and none-examination of C. Pune Ram has rendered the prosecution story to be extremely doubtful. 8. According to PW-2, PW-3, PW-4 and PW-9 village from the place where the accused was nabbed 5 was at a distance of 1½ kms. According to PW-2 and PW-3 C. Pune Ram returned back just after 5-6 minutes without finding any body. It is not the case of the prosecution that C. Pune Ram had gone in the vehicle to search for independent witnesses. Therefore, it is humanly impossible to cover on foot a distance of 1½ kms. and come back after searching for independent witnesses. Even, according to the prosecution there was no habitation in and around the place where the accused was nabbed. Now if that be so, then why is it that police party did not ask C. Pune Ram to go in the jeep and look for independent witnesses in the village or take the accused to the village for being searched in the presence of the villagers. 9. Coming to the depositions of police officials, we find that there are serious contradictions in their version. In fact we find that PW-2 and PW-3 were not even present on the spot and they appeared to have been introduced later on. According PW-2 and PW-3 accused had concealed the contraband under her dupatta, which is not the version of PW-9, according to whom the accused was carrying polythene bag in her hand which was seen by them and from that the contraband substance was recovered. According to the version of PW-2 accused was overpowered by PW-9 and PW-3 but PW-9 is absolutely silent on this aspect, therefore, it cannot be conclusively said that accused was 6 overpowered by any of the police officials. Further according to PW-2, accused was nabbed from the path above the road. Whereas according to PW-3 and PW-9 accused was apprehended on the road itself. That apart, PW-9 states that they had stopped the vehicle and all the police officials had got down and started patrolling on foot and it was only after they had walked 5-7 steps that they saw accused Bhagi Devi coming from the opposite direction. Now this version stands materially contradicted by PW-4, according to whom only PW-9 and PW-3 had stepped out of the vehicle and had started walking and all the other police officials kept on sitting in the parked vehicle. The alleged incident took place on 29.12.2000 at about 6.30 p.m. Judicial notice can be taken of the fact that in a hilly area it becomes dark at that time. It is not the case of the prosecution that after alighting from the vehicle, headlights of the jeep were kept on and thus they were able to spot the accused coming from the opposite side. It is also not the case of the prosecution that after alighting from the vehicle they had seen the accused coming from the opposite side and spotted her in the light of same search light being carried by them. Admittedly, according to prosecution witnesses it had become dark at the relevant point of time. If this were so, how is it that they were able to spot the accused on the site. Thus prosecution has failed to prove the case by 7 leading clear, cogent, convincing, reliable material. 10. The accused had had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra), Judge. July 14, 2011 (Sanjay Karol), (C) Judge.