IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.405 of 1995. Dated of Decision: November 12, 2009. State of H.P. ……… Appellant. Versus Sher Singh. ..…. Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?. For the Appellant : Mr. P.M. Negi, Dy. Advocate General. For the Respondent : Mr. I.D. Bali, Sr. Advocate with Mr. Virender Bali, Advocate. Surjit Singh, J (oral): State has appealed against the judgment dated 24th September, 1994 of learned Sessions Judge, Shimla, whereby respondent Sher Singh, who was charged with and tried for offence, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has been acquitted. Case of the prosecution which led to the trial of the respondent may be summed up thus. On 25th June, 1992, PW6 Gurmeet Singh, SHO, Police Station Dhalli, received secret information that a man had been coming towards Dhalli from Bhatha Kuffer side with Charas. He (PW6 Gurmeet Singh) immediately rang up PW3 Gita Ram, Dy.S.P. Shimla, who told PW6 Gurmeet Singh that he was reaching the Tunnel, which the man was supposed to Whether reporters of local papers may be allowed to see the judgment? 2 cross for reaching Dhalli from Bhatha Kuffer. Soon, PW6 Gurmeet Singh, who started from Police Station Dhalli and PW3 Dy.S.P.Gita Ram, who started from his office at Shimla reached the Tunnel joining Bhatha Kuffer with Dhalli. There is a hotel known as Navrattan Hotel, close to the point, where Dy.S.P. Gita Ram and SHO Gurmeet Singh waited for the person, who was stated to have started from Bhatha Kuffer. Owner of the hotel, PW1 Har Gopal and another person namely Sanjeev Kumar (PW2) were associated as independent witnesses. Around 5.45 p.m., appellant was seen coming from Bhatha Kuffer side. On seeing the police, he tried to turn back, but was overpowered by SHO Gurmeet Singh. He was questioned and told that it was intended to search his person and if he so desired, search could be arranged in the presence of a Gazetted Officer or a Magistrate. Respondent opted to be searched by Dy.S.P. PW3 Gita Ram. Bag Ex.P1, which respondent was carrying was searched. It was found containing Charas, which weighed 1.700 kgs. Two samples weighing 25 grams each were separated and made into two parcels. Bulk recovered stuff was also made into a parcel. All the three parcels were sealed with a seal that produced the impression of letter ‘M’ of English alphabet. A written report of the search and seizure was prepared and sent to the Police Station Dhalli, where the case was registered formally, vide FIR Ex.PW6/C. One of the two samples was sent to the Chemical Examiner, who 3 vide report Ex.PA, opined that the sample contained 34.4% resin and hence, it was Charas. Respondent denied that Charas was recovered from him or that he was apprehended, carrying a bag, by PW3 Gita Ram Dy.S.P. and PW6 Gurmeet Singh, SHO, in the presence of PW1 Har Gopal and PW2 Sanjeev Kumar. He stated that he had been falsely implicated. However, he did not attribute any motive to the Dy.S.P. and SHO, for his alleged false implication. Learned Sessions Judge acquitted the respondent, holding that the two independent witnesses did not support the prosecution case and there was non-compliance of mandatory provision of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, as also non-compliance of the provision of Section 55 of the said Act, which though not mandatory, yet if its non- compliance caused any prejudice to the accused, the same could be taken into account, as a ground for acquittal. We have heard the learned Deputy Advocate General as also the learned counsel for the respondent and gone through the record. Learned Sessions Judge was not justified in rejecting the case of the prosecution, without appreciating the evidence of PW3 Gita Ram, Dy.S.P., and PW6 Gurmeet Singh, SHO, solely for the reason that the two independent witnesses did not support it. Both the independent witnesses were cross-examined by the prosecution with the leave of the Court. PW1 Har Gopal admitted that he was with the police near the Tunnel and a man containing 4 bag of Charas was nabbed by the police in his presence, and on search, that bag was found to contain Charas. He however denied that that man was respondent Sher Singh, who works as a Mechanic at the PWD Workshop, Bhatha Kuffer. When confronted with his statement under Section 161 Cr.P.C. Ex.PW6/D and its marked portions ‘A’ to ‘A’, ‘B’ to ‘B’, ‘C’ to ‘C’ and ‘D’ to ‘D’, he stated that the aforesaid statement and its marked portions had been correctly recorded. He did not deny having made statement Ex.PW6/D nor did he say that that statement was incorrectly recorded; rather he admitted that it has been correctly recorded. No doubt, the statement and its marked portions, particularly, portion ‘B’ to ‘B’ in which he stated that the man, who was apprehended was respondent Sher Singh s/o Surat Ram, resident of village Nog, Pargana Kumarsain, District Shimla, presently working as Fitter in PWD Workshop, Bhatha Kuffer, cannot be used as evidence, but the conduct of the witness becomes relevant when he admits that his statement to the police had been correctly recorded and despite that he denies while in the witness box that the man, who was apprehended was the respondent. The witness admitted that search and seizure memo Ext.PW1/E bore his signatures and it was prepared in his presence. In this memo also, the name and particulars of the respondent find mentioned. The other independent witness, namely PW2 Sanjeev Kumar, is proved to be a liar, per testimony of PW1 Har Gopal itself. PW1 Har Gopal very categorically stated that he and Sanjeev Kumar (PW2) were present with the police when the man with Charas was 5 nabbed and his bag was searched, but PW2 states that he was called to the Police Station and it was there that his signatures on certain papers were obtained. In the face of the above discussion, learned Sessions Judge was not justified in disbelieving the testimony of police witnesses, taking support from the testimony of PW1 Har Gopal and PW2 Sanjeev Kumar, hostile witnesses, who are shown to be liars, as demonstrated hereinabove. We see no reason to disbelieve the testimony of PW3 Gita Ram, Dy.S.P. and PW6 Gurmeet Singh, SHO. There is no contradiction in their testimony nor do we notice any inconsistency or anything else improbablising their testimony. Both of them very categorically stated that they apprehended a man at the tunnel, who was carrying a bag and that that man was respondent Sher Singh. They also testified that on search of the bag of the respondent, Charas weighing 1.700 Kgs. was recovered. Report of the Chemical Examiner Ex.PA proves that the stuff recovered from the respondent was Charas. View taken by the learned Sessions Judge that search is vitiated on account of non-compliance of mandatory provision of Section 42(2) of the Narcotic Drugs and Psychotropic Substances Act, is also incorrect and illegal. Section 42 of the Narcotic Drugs and Psychotropic Substances Act applies where an enclosed place is to be searched. It does not apply when search is to be conducted at a public place in the open. In such a case, it is Section 43 of the Narcotic Drugs and Psychotropic Substances Act, which is 6 applicable. Provision of Section 43 had been duly complied with, at the time of search and seizure. Also we do not find ourselves in agreement with the view taken by the learned Sessions Judge that the provisions of Section 55 had not been complied with. Section 55 requires that any narcotic drugs and psychotropic substance seized from a person, is required to be deposited with the SHO. In this case, the SHO himself, namely PW6 Gurmeet Singh conducted the search and seized the property and then deposited the same with Moharar Head Constable at Police Station Dhalli. Therefore, it cannot be said that Section 55 of the Narcotic Drugs and Psychotropic Substances Act, has been violated. In any case, there is nothing on the record and also not in the judgment of the learned Sessions Judge, indicating that on account of the alleged non-compliance of Section 55 of the Narcotic Drugs and Psychotropic Substances Act, respondent suffered any prejudice. Learned counsel for the respondent submits that Section 50 had also not been complied with in the present case. There is no merit in this submission also. Firstly, Section 50 was not applicable, because it was not a case of personal search of the respondent, but the search of his bag and secondly, the Deputy Superintendent of Police had informed the respondent that the latter had a right to be searched in the presence of a Magistrate or some other Gazetted Officer of notified department and in case, he so desired, search could be conducted in the presence of a Magistrate 7 or any Gazetted Officer. A memo to this effect was prepared which is Ex.PW1/A. In view of the above stated position, we are of the considered view that the judgment of the learned trial court is perverse, illegal and hence, unsustainable. Consequently, we accept the appeal, set- aside the judgment of the learned Sessions Judge and convict the respondent of offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He be produced in the Court on 25.11.2009 at 10 a.m., for being heard on the question of quantum of sentence. Non-bailable warrant of arrest be also issued against the respondent and sent to the concerned SHO, with a direction to arrest the respondent and produce him before us on 25.11.2009. (Surjit Singh) Judge November 12, 2009. (Surinder Singh) (Pds) Judge.