HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.M.P.(M) No. : 945 of 2008 Decided on: 29.4.2009 State of Himachal Pradesh ……… Appellant. Versus Nigel Johan Smith ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. Per Deepak Gupta, J.(Oral): Record has been received. The case of the prosecution, in brief, is that on 1.9.2005, a police party headed by PW-7 Jagdish Chand had laid a Naka at a place about 1 km. from Nehru Kund near Manali. According to the prosecution, the accused was seen carrying a rucksack. When the accused saw the police, he got perplexed and tried to run away. This aroused the suspicion of the police officials, who apprehended him. The rucksack, which the accused was carrying, was searched and 600 grams of charas was allegedly recovered from this rucksack, according to the prosecution. After completing the formalities and getting the report of the Analyst, the challan was filed against the accused. The defence of the accused was that in fact he had boarded a bus owned by Himachal Pradesh Tourism Development Corporation going from Manali to Delhi ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - on 31st August, 2005 and that on the search of the bus, this bag was found unclaimed on the shelf near seat No.10 occupied by the accused. According to the accused, he has been roped in, only on the basis of suspicion. The defence of the accused is that nothing had happened at Nehru Kund and the entire recovery was made near the bus stand. The learned trial Court has acquitted the accused mainly on two grounds. The first ground, which has weighed with the learned trial Judge is that the search is alleged to have taken place at 7.00 a.m. in the morning near Nehru Kund, but no independent witnesses were associated. Secondly, the learned trial Court has found that the defence set up by the accused regarding the place where the charas was recovered is more probable. We have gone through the record and we find no reason to interfere with the judgment of the learned trial Court. True it is that it is not necessary that in every case, independent witnesses must be associated. However, the facts of this case show and even according to the prosecution witnesses, the place where the accused was apprehended is a crowded area. Some of the prosecution witnesses have admitted that there is a temple where people come in the early hours of the morning to pay obeisance. It is also on record that there are number of shops and hotels near the place. When there are large number of shops and hotels, it was for the prosecution to explain why no independent witnesses were associated. The bare statement of one of the members of the raiding party that he could not find any prosecution witnesses is insufficient to discharge the burden which lays on the prosecution. A perusal of the record further shows that PW-2 Mohar Singh has stated that no independent witnesses were available, however, PW-7 Jagdish Chand, who is the Investigating Officer in the case, has stated that he was informed by Mohar Singh that no person was willing to be associated with the investigation. Thus the prosecution version is not consistent. - 3 - In this case, we also find that the defence has proved on record the ticket issued by the H.P. Tourism Development Corporation in which the name of the accused N.J. Smith is mentioned. The manifest of the bus has also been produced on record which also shows that the accused had boarded the bus. The defence has also got proved Ext.DA, which is the recovery memo in respect of one iron trunk, one big bag of black colour and one rucksack. The prosecution witnesses admitted that these three items were recovered from the Bus Stand at Manali. The accused could not have been at two places at one time. The prosecution tried to hide document Ext.DA from the Court and it was only the defence which got this document proved. No explanation is forthcoming as to how the luggage of the accused was found at the Bus Stand and he was apprehended at Nehru Kund on the following morning. Therefore, the defence that in fact the bag containing charas was recovered in the bus appears to be much more probable. In view of the above discussion, we find no merit in this petition and the same is dismissed. (Deepak Gupta), Judge. April 29, 2009. (V.K. Ahuja), (TILAK) Judge.