IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 80/2007 Decided on: 3.6. 2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Ramesh Kumar. …Respondent. _______________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant: Mr. Rajinder Dogra, Addl. Advocate General. For the Respondents: Mr. Suneet Goel, Advocate. ____________________________________________________ Rajiv Sharma, J (oral). State has filed this appeal seeking reversal of the judgment dated 21.11.2006 of the learned Special Judge, Fast Track Court, Kullu in Sessions Trial No. 82 of 2004, whereby respondent, who was charged with and tried for offence punishable, under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has been acquitted. 2. Case of the prosecution, in a nutshell, is that on 7.1.2004 at 7.00 A.M., Station House Officer PW-9 Daya Sagar alongwith Head Constable Sandeep Kumar (PW-4), 1 Whether reporters of the local papers may be allowed to see the judgment? yes 2 Head Constable Hari Singh and HHC Jia Lal was present between Sairopa and Deori. A person was found coming from Sairopa side and he was on his way towards Deori. He got perplexed. He was questioned by PW-9 Daya Sagar. He disclosed his name to be Ramesh Kumar. PW-9 Daya Sagar associated Head Constable Sandeep Kumar and Head Constable Hari Singh as witnesses. PW-9 gave his personal search to the respondent and memo Ex.PW-2/A to this effect was prepared. Respondent was apprised of his right either to be searched in the presence of Magistrate or Gazetted Officer. He consented to be searched by the Police Officer vide consent memo Ex.PW-2/B. During the course of search of the person of respondent, one polythene envelope was found concealed inside the jacket by him. The envelope was opened and it contained charas in the shape of sticks. The recovered charas was weighed with the aid of scale and weights and it was found to be 500 grams. Two samples of charas 25 grams each were separated from the recovered charas. These samples were sealed in separate parcels. Remaining charas was put in the same polythene and was sealed in a parcel. Three seal impressions of alphabet ‘T’ were affixed on each parcel. Sample seal impressions ‘T’ were obtained separately. NCB forms in triplicate were filled on the spot. The seal after use was 3 handed over to witness Sandeep Kumar. A seizure memo Ex.PW-2/D was prepared on the spot. HHC Jia Lal handed over the Rukka at Police Station, Banjar to ASI Lekh Ram. In sequel thereto, FIR was registered. Case property was deposited at Police Malkhana with MHC of Police Station, Banjar. Special report was prepared by PW-9 Daya Sagar and the same was presented by him to the Additional Superintendent of Police on 8.1.2004. MHC Chaman Lal handed over one sealed sample alongwith NCB form in triplicate, sample seal impression ‘T’ and other documents to constable Dalip Kumar vide RC No. 6/2004 with a direction to deposit the same at CTL, Kandaghat. Constable Dalip Kumar deposited the aforesaid articles at CTL, Kandaghat. The report of the CTL, Kandaghat is Ex.PW-8/A. According to this report, sample contained the contents of charas. After the investigation of the case, challan was put up in the Court after completing codal formalities, under section 207 of the Code of Criminal Procedure. 3. Prosecution examined a number of witnesses in support of its case. Accused was examined under section 313 of the Code of Criminal Procedure. The defence of the respondent is simpliciter of denial. The trial court acquitted the respondent-accused. Hence, this appeal by the State. 4 4. Mr. Rajinder Dogra, learned Additional Advocate General has strenuously argued that the prosecution has proved its case against the respondent-accused. 5. Mr. Suneet Goel has supported the judgment of the learned trial court. 6. We have heard the learned counsel for the parties and perused the record carefully. 7. PW-2 Head Constable Hari Singh has deposed that on 7.1.2004 at 7.00 A.M., he alongwith police party headed by SHO Daya Sagar comprising of HHC Sandeep Kumar, HHC Jia Lal was present between Sairopa and Deori. A person came from Sairopa side. He got perplexed after seeing the police. SHO Daya Sagar made inquiries about his identity. PW-9 Daya Sagar associated him and Sandeep Kumar (PW-4) as witnesses. PW-9 gave his personal search to the respondent. No incriminating article was found present on his person. Respondent was informed by PW-9 that he was suspecting that he (accused) was in possession of contraband. He was also apprised of his right to be searched in the presence of Magistrate or Gazetted Officer. He consented to be searched by the police vide memo Ex.PW-2/B. Personal search of the respondent was taken and he was found having kept charas in polythene envelope in the inner side of the jacket worn by him. The 5 recovered charas was weighed and it was found to be 500 grams. Two samples of charas 25 grams each were separated and sealed in separate parcels. Remaining charas was put back in the same polythene envelope and was sealed in separate parcel. A seizure memo Ex.PW-2/D was prepared on the spot. 8. There are material contradictions the manner in which the contraband was concealed by the respondent. PW-2 Hari Singh has testified that the contraband was kept by the respondent underneath the armpit. PW-3 Jia Lal has deposed that contraband was concealed by the respondent under the jacket near his stomach. PW-9 Daya Sagar has deposed that the contraband was kept by the respondent under the jacket near his heart. These contradictory statements make the story of the prosecution doubtful and unbelievable. No independent witnesses were associated by the police in this case on the pretext that it was a secluded place. However, PW-2 Hari Singh deposed that PW-9 Daya Sagar did not send any police official to call independent witnesses on the spot. PW-3 Jia Lal deposed that he went to locate independent witnesses. PW-4 Sandeep Kumar deposed in his cross-examination that no attempt was made to associate local independent witnesses. PW-9 Daya Sagar 6 deposed that no police personnel were sent to locate independent witnesses. 9. What emerges from the contradictory statements of PW-2, PW-3, PW-4 and PW-9 is that no endeavour has been made by the police to associate independent witnesses. There are material contradictions the manner in which consent memo Ex.PW-2/B was recorded. PW-2 HC Hari Singh deposed that he scribed the consent memo. However, PW-4 Sandeep Kumar has deposed that consent memo was written by PW-9 Daya Sagar. PW-9 has deposed that consent memo was written by him. The three witnesses have taken contradictory stand the manner in which consent memo was prepared on the spot. It further casts doubt on the version of the prosecution. It is also doubtful whether the prosecution had sent the sample of seal to CTL, Kandaghat alongwith incriminating contraband. 10. The contradictions, as noticed hereinabove, are material and not minor in nature. There are contradictions the manner in which contraband was concealed by the respondent. There are material contradictions whether the police has made any sincere efforts to associate the independent witnesses or not and the manner in which consent memo Ex.PW-2/B was prepared on the spot. 7 11. In view of the aforesaid discussion, we find no merit in the appeal and the same is dismissed. Bail bonds furnished by the accused-respondent are ordered to be discharged. (R.B. Misra), J. (Rajiv Sharma), J. 3.6. 2010*awasthi*