IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 223 of 2002 Date of Decision : June _23_ , 2011 State of Himachal Pradesh Appellant Versus Mohammad Yakub Respondent Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. R. K. Sharma, Senior Addl. Advocate General. For the respondent : Mr. Virender Singh Rathore, Advocate. Justice Sanjay Karol, J. (Oral) For an offence, which is alleged to have been committed on 27.12.1999, accused was put to trial. In terms of judgment dated 5.11.2001, passed by the learned Sessions Judge, Kangra at Dharmshala, in Sessions Case No. 18-D/VII-2000, titled as State versus Mohammad Yakub the accused stands acquitted of the charged offence. 2. It is the case of the prosecution that ASI Chain Lal (PW-12) was present at Bhagsunag Road Mecleod Ganj in connection with investigation of case F.I.R. No. 281/99. He received a secret Whether reports of Local Papers may be allowed to see the judgment? 2 information to the effect that the accused was dealing in the sale of ‘charas’. He telephonically informed Dy. S.P. Sh. Vimukat Ranjan (PW-11). ASI-Chain Lal (PW-12) joined Sh. Dinesh Kumar (PW-1) and Sh. Karam Chand in the investigation. The raiding party went to the house of the accused and found the door to be locked. The accused was called from his shop and informed about the apprehension that he was dealing in the sale of ‘charas’ and, as such, wanted his house to be searched. The accused opened the lock of the door of his house and the raiding party searched the same and from the almirah kept in a room, one polythene packet was found from which contraband substance was recovered. Weighing scales were brought from the nearby shop` of Sh. Amit Raj (PW-3) and upon weighment contraband substance was found to be of 35 grams. Two samples of five grams each were taken by ASI-Chain Lal (PW-12) and sealed with seal impression-T. Remaining substance was sealed in a separate parcel and also sealed with seal impression-T. The seal was handed over to PW-1. Ruka (Ext. PC) was prepared and sent through constable Om Prakash (PW-2) for registration of the case. F.I.R. No. 283/99 (Ext. PE) dated 27.12.1999, under Section 20 NDPS Act was registered at Police station Dharamsala. Accused was informed of his grounds of arrest and arrested on the spot. Sealed parcels were deposited with the MHC-Sushil Kumar (PW-6) in the police station where they were resealed with the seal impression ‘A’. One sample was sent to C.T.L. Kandaghat and report (Ext. PF) obtained which showed that the 3 contraband substance was ‘charas’. With the completion of investigation challan was presented in the Court for trial. 3. The accused was charged for having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) to which he pleaded not guilty and claimed trial. 4. In order to prove its case prosecution examined twelve witnesses and the statement of the accused under Section 313 Cr. P.C. was recorded in which the accused took the following defence:- “I am innocent. Police officials had come to my shop and demanded to take paper mache articles without paying for the same, to which I did not agree. So they first took me to the police post, where they checked my papers and not finding anything incriminating, they then brought me to my house and subsequently arrested me on the allegations that they have recovered ‘charas’ from my house, which is absolutely incorrect. I have falsely been implicated in this case.” 5. The Court below acquitted the accused of the charged offence. Hence the present appeal. 6. In order to prove its case, prosecution has to, by leading clear, cogent, reliable, convincing material show that 35 grams of ‘charas’ was recovered from the conscious and exclusive possession of the accused. 4 7. Act undisputedly prescribes stringent punishment. In these circumstances the degree of proof to prove the charged offence is also to be more stricter. The Act by itself prescribes provisions which are mandatorily required to be complied with by the investigating agencies. 8. Now in the instant case there is nothing to show that the mandatory provisions of Section 42 of the Act have been complied with in letter and spirit. The Act requires that before carrying out search of any building, conveyance or place, any prior information received by an empowered officer is required to be taken down in writing. Now in the instant case, undisputedly ‘charas’ was allegedly recovered from the house of the accused and from the reading of the testimonies of Dy. S.P. Sh. Vimukat Ranjan (PW-11) and ASI- Chain Lal (PW-12) it is evidently clear that no document, of what so ever nature, was prepared by PW-12, reducing in to writing his belief or information with regard to the fact that the accused was dealing in the sale of ‘charas’ or that he had kept the contraband substance in his house. PW-2 has also stated that no information of such like nature was either reduced into writing or sent to the superior officer. Simply because PW-11 was informed on “telephone” by PW-12, that fact alone would not amount to sufficient compliance of the mandatory provisions of law, though even this fact by itself cannot be said to have been sufficiently proved. 9. That apart, we find the version of the prosecution witnesses not to be reliable, inspiring confidence and trustworthy. According to 5 PW-12, he had received information that the accused was dealing in the sale of ‘charas’. He had no information as to whether the sale was being affected from his house or shop. He formed a raiding party consisting of PW-1 and one Sh. Karam Chand. Now Sh. Karam Chand has not been examined in Court and Sh. Dinesh Kumar (PW- 1) admittedly is not resident of the locality but in fact has a shop which is at a distance of 75 mts. away from the shop of the accused. In between the shop of the accused and this witness there are many shops of other persons. Yet, without any explanation PW- 11 chose to associate only PW-1 during investigation and not the immediate neighbours. Further why is it that no raid was conducted in the shop of the accused who in fact was found sitting there and was called from there to his house by the raiding party. Further police searched only one room of the house of the accused. Why is it that another adjoining room was not searched. This makes the prosecution case to be doubtful and the defence taken by the accused, also put in his cross examination to the prosecution witnesses, to be probable. 10. With regard to the recovery of ‘charas’ from the conscious possession of the accused, we also find the testimonies of the relevant witnesses to be contradictory on material points. According to PW-2 from whom the scales were brought for weighing ‘charas’ he had gone inside the room where the search was conducted. This means that even this witness was associated by the police before the recovery was affected. But however according to PW-11 he had 6 associated only PW-1 and Sh. Karam Chand and recovery was effected only in their presence when PW-12 was also there. Now none of these witnesses mention the presence of PW-2 at the relevant time. 11. Further according to PW-12 no witness or constable went inside the room of the accused which version stands materially contradicted by PW-2 and PW-1. The Dy. S.P. (PW-11) could not even describe the premises from where the ‘charas’ was recovered. His presence at the spot is thus rendered doubtful. 12. There is yet another fallacy in the prosecution case. The NCB form filled by PW-11 was in fact the form meant for excise cases and when sent to the laboratory was returned back with an objection that fresh NCB form be filled up and sent again. This is apparent from the testimony of PW-6. Importantly this witness has resiled from his earlier statement (Mark-B) recorded by the police wherein it was recorded that the NCB form along with sample was sent to the laboratory on 13.2.2000. In Court he has contradicted this version by stating that the form was sent on 22.1.2000, 6.2.2000 and finally on 20.2.2000. Who filled up the NCB form subsequently sent to the laboratory has not come out on the record. Thus the possibility of the police tampering with the sample and preparing fresh document to falsely implicate the accused cannot be ruled out. 13. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in 7 Mohammed Ankoos and others versus 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 person 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. (Justice R. B. Misra), Judge. (Justice Sanjay Karol), Judge. June _23_, 2011 (PK)