IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. MP(M) No. 906 of 2004 Date of Decision: October 13, 2008 ________________________________________________________________ State of H.P. … Appellant Versus Jones John Paul … Respondent. ______________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge, The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for reporting? For the Appellant : Mr. R.M.Bisht, Deputy Advocate General with Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondent(s) : None ________________________________________________________________ Deepak Gupta, J (Oral). This petition for leave to appeal is directed against the judgment dated 2.7.2004 passed by the learned Sessions Judge, Kullu in Sessions Trial No. 19 of 2004 whereby he has acquitted the accused of having committed an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for short: NDPS Act). Briefly stated the prosecution case is that on 26.11.2003, PW8 SHO Dinesh Kumar was leading a police patrol party for traffic checking. Bus bearing registration No. HP-39-4575 was stopped for checking near the Bajaura Check Post. On checking, a foreigner was found sitting on seat No.19 of the bus having a polythene bag between his legs. On seeing - 2 - the police party, this foreigner got perplexed and tried to conceal the bag under his hips. The police party associated two persons who were sitting behind the seat of the foreigner as well as the conductor of the bus and the bag of the foreigner was checked. On checking, it was found to contain Charas. The foreigner disclosed his name to be Jones John Paul an Australian national. The charas on weighment was found to be 1.500 Kgs. Two samples of 25 grams each from the recovered charas were separated. The samples and the bulk charas were sealed with seal mark “H”. NCB form Ex.PW2/B was prepared and the case property was taken into possession vide memo Ex.PW5/A. Ruqa Ex.PW8/B was sent to the police station on the basis of which FIR Ex.PW4/A was registered. On reaching the police station, the investigating officer deposited the case property with MHC Dharam Chand PW2, who made entry in this regard in the Malkhana Register Ex.PW2/A. One sample was sent for examination to the Chemical Examiner who vide his report Ex.PA opined that the sample contained Charas. On the basis of the aforesaid facts, the accused- respondent was prosecuted. The three independent witnesses associated with the search and seizure operation, did not support the - 3 - prosecution case. They turned hostile. Despite being cross- examined by the public prosecutor, nothing fruitful was extracted from their statements. In view of the fact that the independent witnesses had not supported the prosecution, the learned trial Court came to the conclusion that the statements of the police officials were required to be examined with great care and caution. No fault can be found with this. The stand of the respondent was that the polythene packet was not recovered from him. All the independent witnesses have stated that the polythene packet containing charas was not recovered from beneath the hips of the foreigner. It is pertinent to note that the respondent had refused to sign the seizure memo Ex.PW5/A. PW6, the conductor of the bus has clearly stated that the foreigner had even at the time when the packet was recovered stated to the police that the packet does not belong to him. The investigating officer PW8 has supported the case of the prosecution. PW7 who is also a police official states that he never entered the bus. According to him, PW8 and one other police official came out with the foreigner and the polythene packet. - 4 - There is another contradiction in the statements of these two official witnesses. According to the investigating officer, the packet was opened inside the bus and was found to contain charas but according to PW7, the packet was searched inside the tent on the side of the check-post after the respondent and the police officials had got down from the bus. According to PW8, S.I. Tameshwar Singh, had also accompanied him inside the bus. However, for reasons best known to the prosecution even though the other independent witnesses had turned hostile, SI Tameshwar Singh was not examined. The statement of PW7 HC Gulab Singh also does not support the prosecution version. Therefore, the learned trial Court rightly disbelieved the statement of PW8. Keeping in view all the aforesaid circumstances and the various contradictions in the statements of the prosecution witnesses, we are of the opinion that the learned trial Court rightly did not rely upon the prosecution version. As such, there is no merit in this petition for leave to appeal and the same is rejected. ( Deepak Gupta ), J. October 13, 2008. ( V.K.Ahuja ), J. s.