1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 434 of 2001 Decided on March 24, 2011 State of H.P. …Appellant. Versus Surender Singh alias Sangam Girl ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. ¹Whether approved for reporting? Yes. For the appellant: Mr. R.K. Sharma, Senior Addl. Advocate General, with Mr.Rajinder Dogra, Addl. Advocate General. For the respondent: Mr. Ashok Thakur, Amius Curaie. Justice Surinder Singh,J. (oral) The respondent was acquitted of the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short the Act) allegedly for keeping in possession 1100 grams of charas. The State felt dissatisfied by the judgment of acquittal. Hence the present appeal by the State. 2. Pre-admission notice was sent to the respondent but he was not traceable even despite non- bailable warrants. However, appeal was admitted for hearing on 31.7.2001, again the respondent who is Sadhu could not be traced, as such, he was declared proclaimed 2 offender and till date his whereabouts are not known. 3. We do not think it proper to prolong the matter unnecessarily and appoint Sh.Ashok Thakur as an Amicus Curiae in the present case. Sh. Ashok Thakur, has been practicing in this Court for the last more than 10 years on civil as well as the criminal side and appearing before us. Apart from this, he is also the Central Government Standing Counsel. The paper book has been supplied to him, he sought time to make his submissions after respite. Sh.Ashok Thakur is ready and willing to argue the matter today itself. 4. We have heard Mr.R.K.Sharma, learned Senior Additional Advocate General and Mr.Ashok Thakur, Amicus Curiae. 5. Mr.R.K.Sharma, Senior Additional Advocate General argued that the learned trial Court, acquitted the respondent on whimsical grounds without properly scrutinizing the evidence on record. Although, the independent witness, who was associated at the time of search, did not support the case of the prosecution, but the official witnesses have supported its case, the statements were not appreciated in the right perspective. 6. Contra, Sh.Ashok Thakur, amicus curiae, has vehemently argued that the link evidence in the instant case is not complete and also that the document Ex.PW1/F 3 i.e. the memo informing about the arrest, clearly indicates that the respondent was accompanying his Guru Sh.Hanuman Giri and there is every possibility that he was carrying his luggage. Also the prosecution story emerging that respondent was alone when intercepted, falsifies its version, therefore, the contraband in his conscious possession cannot be attributed to the respondent. 7. We have given our thoughtful consideration to the rival contentions of the parties and have carefully examined the evidence on record. 8. Precisely, the case of the prosecution, is that on 5.2.1998 at about 11.45 A.M., PW.10 ASI Ajeet Singh was present at bus-stand Mandi along with Head Constable Balak Ram and Constable Ravinder Singh. The respondent on seeing the police party stopped, felt scared and tried to escape, but he was detained by police. PW.9 Gagnesh Sharma and Hardev Singh (not examined) were associated as independent witnesses. The respondent was suspected of carrying contraband, as such, option in terms of Section 50 of the Act, was given to him in writing Ex.PW.1/A. The respondent consented to be searched by the police party. The police party, in presence of the independent witnesses, allegedly conducted the search of the rexine bag (Ex.P3) to which the respondent was carrying and recovered 1100 grams of charas. Out of the recovered 4 charas two samples of 25 grams each were separated and sealed with impression 'T'. The remaining bulk charas was also sealed with the same seal and the case property was taken into possession vide memo Ex.PW1/C in presence of the aforesaid witnesses. The bag was taken into possession vide separate memo Ex.PW1/C. 9. The respondent was arrested and he was informed of the grounds of arrest. His personal search was conducted and a memo with respect to the articles and currency notes recovered from his possession, was also prepared in presence of the witnesses. 10. A Rukka Ex.PW2/A was prepared and sent for registration of the case, which culminated into present FIR. 11. Special report Ex.PW5/A was sent to the official superior within the stipulated time. 12. The case property and the respondent both were produced before Inspector SHO Om Prakash (not examined being dead). He resealed the case property by his seal 'B' and issued certificate Ex.PW4/B to this effect, under his signatures. Thereafter, case property was deposited with PW4 MHC Gambhir Singh on the same day. 13. As per the case of the prosecution, on the same day, Additional MHC Hem Raj (PW3) took over the charge of the Malkhana. On 12.2.1998, sent the sample parcel through Constable Dalip Singh to CTL Kandaghat for its 5 analysis. On analyzing the sample, it was found having cystolithic hair present and resin 31.46%. In the opinion of Chemical Examiner, the exhibit contained the contents of charas. The report is Ex.PX. 14. The police had also prepared site plan of the place of alleged recovery and recorded the statements of the witnesses. 15. After completing the investigation, challan against the respondent was filed for the aforesaid offence and he was put on trial and at the end acquitted by the learned trial court. 16. PW.9 Sh.Gagnesh Sharma, an independent witness, flatly denied if anyone was searched in his presence, but however, it is pertinent to note that he stated that on the said date ASI Ajeet Singh had sent for him at about 11.45 A.M. that the police had detained 2-3 Sadhus, which vindicates the stand taken by the learned counsel for respondent that the memo of arrest also shows that Guru of respondent was with him. Although, he admitted having signed some of the documents at the behest of the police to complete the formalities, yet he disowned his statement recorded under Section 161 of the Code of Criminal Procedure. Other independent witness Hardev Singh was not examined. 17. PW.10 Sh.Ajeet Singh tried to corroborate the 6 prosecution story as initially propounded but did not make any reference of the other Sadhus present with the respondent. Memo of arrest Ex.PW1/F on record, is the information regarding arrest of the respondent, whereby he requested to inform his Guru about his arrest as stated above and there is an endorsement regarding his arrest in the said memo in the presence of Guru Hanuman Giri. We find that the prosecution could not connect the bag in question with the respondent when Guru and disciple go together, it is a common knowledge that disciple would be carrying the belongings of his Guru. This apart, we also find that the case property though produced before Inspector Om Prakash and it was allegedly resealed by him with impression 'B' and the case property alongwith samples were deposited with PW4 MHC Gambhir Singh on 5.2.1998, but MHC Gambhir Singh nowhere stated that sample of seal alongwith NCB forms were also deposited by him in the Malkhana. The Malkhana register was not also produced nor its abstract was placed and proved on record in accordance with law. He also did not say that on the same day he handed over the charge of the Malkhana to Additional MHC PW3 Hem Raj. PW3 aforesaid stated that he took over the charge of the Malkhana on the said date and case property find mention receipted in the register. On 12.2.1998, one of the samples parcel was stated to 7 have been handed over to Constable Dalip Singh, but there is no reference regarding sending of sample of seal on NCB forms, even it is not testified by PW6 Constable Dalip Singh. 18. Also we find that NCB form one of which is Ex.PX, which contained the report of the laboratory does not have the facsimiles of the seals used. There is no reference in the said form that the sample of seals and sample parcels were also being sent. The receipt of the laboratory and also the seals receipt of the laboratory have not been produced. On the top of it, the Road Certificate against which sample was taken to the laboratory was neither produced nor proved. In Ex. PX report of analysis even it is not shown as to with which seal sample was sealed and the Chemical Examiner had tallied the sample seal with which of the seal used. There is only a lithographic impression with respect to this fact which appears to have been affixed in a mechanical manner. Therefore, the presumption attached to it lends no assistance. 19. In absence of the aforesaid evidence, in our opinion, for the reasons aforesaid, the prosecution has failed to prove its case against the respondent in accordance with law, as such, his acquittal cannot be interfered with. 8 20. Hence the appeal is dismissed being without any merit. We also terminate the proceedings of declaring respondent a proclaimed offender by exercising our inherent powers under Section 482 of the Code of Criminal Procedure, as it would, in the aforesaid background be the abuse of the process. The Superintendent of Police, Mandi be informed about it accordingly. 21. Before parting with this judgment, we would like to record our appreciation to Mr. Ashok Thakur, Amicus Curiae, for the fruitful assistance rendered by him. (R.B. Misra) Judge March 24, 2011 (Surinder Singh) (Purohit) Judge